United States v. Roe

Citation: 913 F.3d 1285Docket: No. 19-600

Court: Court of Appeals for the Tenth Circuit; January 29, 2019; Federal Appellate Court

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Richard Roe pleaded guilty to conspiracy to possess with intent to distribute significant quantities of cocaine base and cocaine, resulting in a twenty-year mandatory minimum sentence under 21 U.S.C. 841(a)(1), 846. The government requested a lesser sentence based on the plea agreement, leading to a fifteen-year sentence imposed by the district court. Roe did not appeal but filed a 28 U.S.C. 2255 motion, claiming ineffective assistance of trial counsel for not contesting drug quantity and for failing to file an appeal as requested. The district court denied the drug-quantity claim, asserting Roe's guilty plea established the quantity. An evidentiary hearing was held for the failure-to-file claim, during which trial counsel stated Roe never requested an appeal. Subsequently, Roe attempted to amend his claim to focus on trial counsel's failure to consult about the appeal, termed the "failure-to-consult claim." The district court rejected this amendment, ruling it was an untimely new claim that didn't relate back to the original motion and also failed on the merits. Roe appealed, and the court granted a certificate of appealability for both claims. The appellate court affirmed the district court's decision, clarifying that a defendant's guilty plea subjects them to penalties associated with the charged drug quantity and that the failure-to-consult claim was untimely.

Roe was indicted by a federal grand jury on multiple charges, including conspiracy to manufacture and distribute significant quantities of crack and cocaine, which fell under the "Conspiracy Count." The minimum sentence for this count was ten years, but due to a prior felony drug conviction in Kansas, the statutory minimum increased to twenty years. Roe pleaded guilty to the Conspiracy Count via a plea agreement, which included the government's commitment to dismiss other charges, refrain from filing a second information to impose a life sentence, and consider a motion for a sentence reduction if Roe provided substantial assistance in other investigations.

The district court confirmed the plea was knowing, voluntary, and factually supported. A Presentence Investigation Report (PSR) indicated Roe distributed over ten kilograms of cocaine, leading to a base offense level of thirty-two, which was adjusted for firearm possession and acceptance of responsibility, resulting in a total offense level of thirty-one. This placed Roe's advisory sentencing range at 168 to 210 months; however, the statutory minimum of 240 months superseded this range. Roe's counsel did not contest the PSR's drug-quantity findings. Following the plea agreement, the government acknowledged Roe’s substantial assistance and requested a 25% reduction of the twenty-year minimum, proposing a sentence of 180 months.

At the sentencing hearing, trial counsel expressed no objections to the Presentence Report (PSR), with Roe not requesting a sentence lower than the 180-month term sought by the government. During allocution, Roe acknowledged his involvement in a drug conspiracy, despite claiming he had never seen the amount of drugs charged. He attributed his cocaine purchases, which were detailed in the PSR as multi-ounce transactions occurring at least twice a week, to his drug addiction. The district court adopted the PSR's findings and imposed a 180-month sentence, affirming its appropriateness based on Roe's drug distribution involvement. The court also addressed Roe's appellate rights, confirming the waiver in his Plea Agreement, to which trial counsel affirmed no surviving rights. Roe did not appeal.

On February 23, 2015, Roe filed a pro se motion under 28 U.S.C. § 2255, arguing ineffective assistance of counsel for not objecting to the sentence length and for failing to file a notice of appeal. He claimed prejudice from being sentenced based on unproven charges, specifically disputing the alleged drug quantity of ten kilograms, asserting he only possessed one gram at arrest. Roe requested resentencing without the mandatory minimum. In response, the government contended that Roe did not ask for an appeal immediately after sentencing, supported by trial counsel's affidavit stating inquiries about an appeal arose months later. The government also defended the PSR's drug quantity determination based on sworn testimony. In a preliminary order partially denying Roe's motion, the district court identified two relevant ineffective assistance claims. It concluded that the drug quantity was immaterial given Roe's plea to a conspiracy involving over five kilograms of cocaine, which dictated the statutory minimum sentence. Thus, the court ruled trial counsel's inaction regarding the sentence was neither deficient nor prejudicial.

The district court did not outright deny Roe's failure-to-file claim but instead ordered an evidentiary hearing to determine if Roe had instructed trial counsel to file an appeal, appointing counsel for Roe in the process. During the hearing, Roe's counsel explored issues beyond the appeal request, including trial counsel's testimony regarding the drug-quantity evidence derived from a co-defendant's statement, which Roe disputed. Trial counsel acknowledged that Roe had only been involved in a minor drug deal and admitted he had not researched whether Roe's prior conviction qualified as a federal felony for sentence enhancement. Importantly, trial counsel stated that Roe never instructed him to file an appeal or discussed the possibility of an appeal at all.

Almost two years post-filing his 2255 motion, Roe submitted a supplemental brief claiming trial counsel was ineffective for failing to consult him about an appeal, suggesting he had non-frivolous issues to raise, including the validity of his predicate conviction and the drug-quantity calculations. The government contended that Roe's supplemental brief introduced new issues and noted he had not sought permission to amend his original motion. The district court ultimately denied Roe's 2255 motion, concluding that the evidence indicated Roe did not ask trial counsel to file an appeal and that his failure-to-consult claim was a new, time-barred theory.

Roe's 2255 motion claims that his trial counsel should have objected to the mandatory minimum sentence based on drug quantity during sentencing. The district court dismissed this claim, reasoning that Roe had knowingly admitted in his plea agreement and during the plea colloquy to conspiring to distribute five kilograms or more of cocaine, indicating that trial counsel's inaction was not deficient. Roe appeals, contending the court erred in deeming his admission sufficient for sentencing liability regarding the drug quantity specified in the indictment.

The government argues that the appellate court lacks jurisdiction to review the drug-quantity claim because Roe's notice of appeal did not specifically reference the district court's May 23, 2016, order addressing this issue. However, the appellate court finds this argument unconvincing, noting that Roe's notice did identify the final order dated March 24, 2017, which encompasses all earlier orders, including the May 23, 2016, order related to the drug-quantity claim. Thus, the court holds that it has jurisdiction to review the matter.

Regarding the standard of review, the appellate court will evaluate the district court's legal conclusions de novo and its factual findings for clear error. The conclusion that trial counsel was not deficient for failing to object at sentencing is based on a legal interpretation of Roe's guilty plea, warranting de novo review.

Roe's drug-quantity claim hinges on whether a knowing and voluntary guilty plea to an indictment with a drug quantity element automatically subjects him to enhanced penalties. The court affirms that such a plea constitutes an admission of all elements of the charge, including any quantity that triggers mandatory minimum sentencing. Citing precedent, the court notes that every relevant court has held that a guilty plea to an indictment with a mandatory-minimum drug quantity element subjects the defendant to that minimum sentence. This aligns with Supreme Court rulings establishing that any fact necessary for a sentence exceeding the maximum must be admitted by the defendant or proven to a jury. Roe's argument that his responsibility is limited to the quantity he personally handled or that was foreseeable does not negate the effect of his guilty plea, which relieves the government of its burden to prove those facts. By pleading guilty, Roe accepted a sentence based on the charged quantity, despite his claims regarding the scope of his involvement in the conspiracy. The procedural safeguards in Federal Rule of Criminal Procedure 11(b) ensure the validity of the plea process.

The court finds that it is unnecessary to analyze the cases cited by Roe in his appeal, as they are irrelevant to the current matter. The initial group of cases cited predates the Supreme Court's decision in Alleyne, which established that facts increasing a defendant's mandatory minimum sentence must be included in an indictment and proven to a jury beyond a reasonable doubt. Previously, under Harris v. United States, such facts were treated as sentencing factors determined by the district court. The second group of cases involves provisions of the United States Sentencing Guidelines concerning drug quantity findings, but the Apprendi line of cases does not apply to advisory Guidelines. Therefore, Roe has not provided relevant authority to contest the applicability of the mandatory minimum based on his guilty plea, which confirms the sentence's applicability. 

Regarding Roe's failure-to-consult claim, it is governed by Fed. R. Civ. P. 15(a)(2), which allows amendments to a 2255 motion during post-conviction proceedings with court permission. However, amendments only relate back to the original pleading if they arise from the same conduct or transaction. In this case, Roe's failure-to-consult claim was filed well after the one-year limitation period outlined in 28 U.S.C. 2255(f)(1), which commences when the conviction judgment becomes final, indicating that the claim is time-barred unless the relation-back doctrine applies.

In United States v. Espinoza-Saenz, the Tenth Circuit first addressed Rule 15(c) in relation to 2255 motions, adopting a limited interpretation. It ruled that an amendment to a 2255 motion may relate back to the original filing date only if the original motion was timely and the amendment clarifies or amplifies an existing claim without introducing new claims or theories. This cautious approach aims to uphold the limitation period established in 2255(f). Contrastingly, the Ninth and Seventh Circuits have taken a broader stance, allowing relation back for claims arising from the same trial and conviction.

The Supreme Court, in Mayle v. Felix, intervened to resolve the existing circuit split, rejecting the more expansive interpretations and favoring a majority view that permits relation back only when the new claims stem from the same core facts as the original claims. This decision emphasized the importance of Congress's intent in promoting the finality of criminal convictions and underscored the requirement for particularity in pleading under the Section 2254 Rules. The Court established that if separate claims would need to be pleaded distinctly in the original petition, relation back would likely be improper. Consequently, the key consideration for determining the applicability of Rule 15(c)(1)(B) is whether the original and amended motions refer to a common core of operative facts, focusing on differences in time and type of facts presented in the claims.

The standard of review for decisions regarding amendments to pleadings is generally for abuse of discretion, except when the timeliness of a proposed amendment to a 2255 motion is at issue, which is reviewed de novo. In this case, the district court concluded it lacked authority to permit an untimely amendment, which is being reviewed de novo by the appellate court. 

The district court correctly determined that Roe's failure-to-consult claim does not relate back to his failure-to-file claim. The two claims are founded on distinct sets of facts; the failure-to-file claim is centered on whether Roe requested his trial counsel to file a notice of appeal, which is a straightforward factual inquiry. In contrast, the failure-to-consult claim involves a more complex analysis of whether counsel acted unreasonably by not discussing the possibility of an appeal with Roe. A failure to file a notice of appeal, when directed by the defendant, is seen as a professional obligation, whereas the duty to consult about an appeal is contingent on the presence of specific circumstances that would indicate a rational defendant's interest in appealing or if the defendant expressed such interest. Courts must evaluate all relevant information known or that should have been known to counsel when determining the reasonableness of the failure to consult. Thus, resolving Roe's claim necessitates a thorough examination of the entire case history to ascertain the expectations of a rational defendant and the signals conveyed by Roe to his counsel.

Roe claimed in his initial 2255 motion that he directed his trial counsel to file a notice of appeal on the day of sentencing, alleging ineffective assistance due to counsel's failure to fulfill this task. However, in a supplemental brief, Roe presented a failure-to-consult claim based on a broader timeline, asserting that his conduct throughout the trial indicated an interest in appealing. He argued that a rational defendant would want to appeal based on three nonfrivolous grounds: (1) the validity of the state drug crime triggering an enhanced mandatory minimum under the government's 851 information; (2) the sufficiency of the factual basis for his guilty plea to the Conspiracy Count; and (3) the alleged over-attribution of cocaine in the PSR, which affected his mandatory minimum under 21 U.S.C. 841(b)(1)(A)(ii). These issues were temporally and factually distinct from the original failure-to-file claim. Consequently, had these claims been included in the original motion, they would have needed to be distinctly pleaded with specific factual support per Section 2255 Rule 2(b). The district court correctly determined that the failure-to-consult claim did not share a "common core of operative facts" with the failure-to-file claim and thus ruled the failure-to-consult claim as untimely.

The district court's order denying Roe's 2255 motion is affirmed, except for the part addressing Roe's failure-to-consult claim. Roe's appeal highlights a detailed factual basis in his plea agreement, consisting of thirty pages and 100 paragraphs. During the guilty plea hearing, Roe expressed discomfort with co-conspirator liability, feeling it was unjust to be accountable for unknown co-conspirators' actions, despite his relatively minor role. The court noted that under conspiracy law, all members are responsible for crimes committed in furtherance of the conspiracy. To address Roe’s concerns, the court recessed the hearing to allow for further counsel consultation and only considered select paragraphs from the factual basis to establish Roe's guilt.

The Presentence Report (PSR) indicated that Roe had purchased and distributed approximately three ounces of cocaine weekly for 120 weeks. Before sentencing, Roe and the government entered a Post-Conviction Agreement, reducing his offense level due to anticipated changes from the Fair Sentencing Act, resulting in a new advisory guidelines range of 140 to 175 months. The record does not suggest that trial counsel acted unreasonably in this matter. The government's evaluation of Roe's assistance was emphasized, as substantial weight is given to it in sentencing considerations. The government noted it had withdrawn a notice that would have subjected Roe to life imprisonment and described the potential 5K motion as a significant favor, indicating that information provided by Roe and his brother was not beneficial for trial purposes. Ultimately, they offered a generous 25% reduction, leading to a sentence of 180 months.

Roe received a sentence comparable to other co-defendants based on the significant quantities of drugs he distributed during his conspiracy. His guilty plea included an acknowledgment of conspiring to distribute at least 280 grams of crack cocaine and five kilograms of cocaine. The factual basis for his plea included assertions that he purchased multi-ounce quantities of cocaine from a co-conspirator. The district court determined that even if the plea agreement lacked a necessary factual basis, Roe could not show he was prejudiced by his counsel's failure to object, as he did not demonstrate that he would have rejected the plea and insisted on going to trial. Roe’s claim of innocence regarding drug quantities beyond one gram was deemed insufficient, as the record showed no viable defense against the conspiracy charges. He was aware that rejecting the plea would expose him to a statutory minimum sentence of life imprisonment. Roe did not assert a claim under Fed. R. Crim. P. 11(b)(3) to invalidate his plea based on an inadequate factual basis; instead, he sought to maintain the benefits of his plea agreement while contesting its terms based on irrelevant case law. Additionally, the presentence report (PSR) indicated that evidence of drug quantities was not solely from a single co-conspirator but was supported by information from a confidential informant and testimonies from his co-conspirators about his distribution activities. Roe's arguments were found unconvincing, especially regarding the determination of drug quantities for sentencing.

Trial counsel acknowledged a lack of understanding regarding the impact of the Presentence Report (PSR) drug-quantity findings on the mandatory minimum sentence and did not conduct any research on the matter. He misinformed Roe that objections to drug quantity would not affect the mandatory minimum sentence. Furthermore, trial counsel failed to meet with Roe to discuss the PSR and could not recall any phone conversations about it. Despite Roe's assertion that he was not responsible for the drug quantities listed, trial counsel did not challenge these findings or verify their accuracy in relation to Roe's guilty plea. The court noted that Roe's guilty plea to a drug conspiracy charge, which included a quantity element, subjects him to enhanced statutory penalties, and he has not substantively challenged the factual basis of his plea. The PSR's drug quantity determinations do not affect the applicability of mandatory minimum penalties. Additionally, the timeliness of Roe's failure-to-consult claim is questioned, making the testimony of trial counsel irrelevant to the outcome of the appeal. Notably, Roe has prior felony convictions for cocaine possession, increasing the government's ability to impose a mandatory life sentence if Roe did not accept a plea agreement. Trial counsel indicated he did not research whether these state convictions qualified as federal felonies and relied on the government’s representations, believing that challenging these convictions would not alter the outcome but could jeopardize the plea agreement's terms.

Roe contended that his guilty plea was improperly given rather than earned. The district court found that even if Roe's plea did not establish the applicability of the statutory provision 841(b)(1)(A)(ii), trial counsel's failure to object did not prejudice Roe, as he failed to show that he would not have pled guilty but for the alleged deficiencies of counsel. The court upheld the trial counsel's performance as adequate, making it unnecessary to evaluate any potential prejudice. Roe acknowledged that if counsel's performance was deemed sufficient, his remaining arguments were irrelevant. 

The district court noted that Roe's guilty plea alone did not lead to a mandatory minimum sentence due to a lack of evidence for such a sentence. The adequacy of the factual basis for the plea was only pertinent if Roe contested the validity of the plea, which he did not. The court also stated that Roe's sentence was based solely on the statutory mandatory minimum, rendering the quantity calculations in the Presentence Report irrelevant. 

Roe's guilty plea was confirmed to comply with Fed. R. Crim. P. 11(b), and his cursory challenge to the plea's voluntary nature was rejected by the district court. He did not seek a certificate of appealability for this issue. Roe's petition indicated he was informed of the mandatory minimum sentence of twenty years to life imprisonment. He has never claimed that his guilty plea lacked an adequate factual basis, consistent with the record. The factual basis noted that over the conspiracy period, conspirators distributed significant quantities of drugs, and Roe admitted to buying multi-ounce amounts of cocaine from a co-conspirator. Additionally, a confidential informant's purchase of cocaine from Roe was documented, further supporting the factual basis for his plea.

The government has asserted its readiness to prove all facts outlined in a 100-paragraph factual basis, demonstrating the essential elements of the conspiracy statute under which Roe was charged. The Presentence Report (PSR), adopted by the district court during sentencing, indicates that Roe personally managed over ten kilograms of cocaine. The court finds it appropriate to consider PSR information when analyzing the plea agreement's factual basis. The excerpt references the applicability of Fed. R. Civ. P. 15 to § 2255 proceedings as established by 28 U.S.C. 2242 and related rules. It clarifies that the limitation period discussed in Mayle v. Felix for habeas proceedings under 28 U.S.C. 2254 parallels the limitation period under § 2255(f)(1), emphasizing Congress's intent to promote finality. 

Section 2255 Rule 2(b) mandates that a § 2255 motion must specify all grounds for relief and the supporting facts. Failure to do so may bar the movant from raising additional grounds later. The particularity required by the Supreme Court in Mayle also applies to § 2255 motions. Rules 4 and 5 necessitate a preliminary review of the motion by the district court, with further action only if the movant appears entitled to relief. The interpretation of Fed. R. Civ. P. 15(c)(1) in this context encourages detailed pleadings from movants. Additionally, in United States v. Espinoza-Saenz, the district court deemed a supplemental motion barred by the AEDPA's one-year statute of limitations and transferred it as a second or successive motion. Roe's appeal explicitly connected the issue of relation back to his failure-to-consult claim in relation to his failure-to-file claim.

Mr. Roe's failure-to-consult claim is connected to his original 2255 motion, where he asserted that his attorney was ineffective for not filing an appeal after he requested it. The amended claim alleges ineffectiveness for failing to consult about the appeal, both claims arising from the same circumstances regarding attorney-client discussions about the appeal. In his reply brief, Roe challenges the government's focus solely on the failure-to-file claim, arguing that the law encompasses all claims from the original petition. The court, however, will only evaluate whether the failure-to-consult claim relates back to the failure-to-file claim. Prejudice is presumed when counsel's ineffectiveness results in the loss of a judicial proceeding. Roe's motion to amend expresses doubts about his guilt and his objections during plea discussions, including correspondence with his attorney reflecting an understanding of the law. The court notes that the rules allow for the pleading of alternative and inconsistent claims. However, if a proposed amended 2255 motion includes an untimely claim, it is treated as a second or successive petition, which the district court cannot address on its merits. Consequently, the court vacates a portion of the district court's order from March 24, 2017, noting that even if the failure-to-consult claim were timely, it would still not succeed on the merits.