Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 94-00005-George W. White, Chief District Judge.
Before: Jones, Ryan, and Moore, Circuit Judges.
The opinion of the court was delivered by: Ryan, Circuit Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 24
RYAN, J., delivered the opinion of the court, in which JONES, J., joined. MOORE, J. (pp. 15-16), delivered a separate Concurring opinion.
Brian K. Hunter filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255, alleging that he had received ineffective assistance of counsel in connection with his plea of guilty to conspiracy to possess cocaine base with the intent to distribute, in violation of 21 U.S.C. §§ 841, 846. The plea agreement he signed provided that he waived the right to appeal his sentence.
The district court granted Hunter's motion in part because the court recognized that it had failed to make explicit findings of fact regarding the amount of cocaine base attributable to Hunter. The newly imposed sentence was the same as the first-87 months-and Hunter filed this timely appeal. We consider first whether the appeal-waiver provision in Hunter's plea agreement forecloses him from bringing this appeal, and conclude that it does not. We nonetheless shall affirm the district court's judgment, finding Hunter's substantive claims to be lacking in merit.
In 1993, Brian Hunter was a member of a Youngstown, Ohio, gang known as the Ready Rock Boys. The raison d'ître of the Ready Rock Boys was the processing and distribution of cocaine base. Hunter's role as a Ready Rock Boy was to distribute cocaine. One day, he sold cocaine to a government informant.
Hunter, along with ten others, was named in a 12-count indictment handed up in January 1994. Hunter himself was named in two counts. Count 1 charged Hunter with conspiring, between April 1993 until October 1993, to knowingly and intentionally possess cocaine and cocaine base, with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846. The sole overt act attributed to Hunter was the sale of 13.1 grams of cocaine base on August 20, 1993. Hunter was also named in Count 11 for knowingly and intentionally distributing, and possessing with intent to distribute, this same 13.1 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B).
Hunter originally pleaded not guilty, but in August 1995 changed his plea to guilty to Count 1 pursuant to a Rule 11 plea agreement; the government agreed to dismiss Count 11. The agreement specified that the parties had agreed upon a base offense level of "29 because the amount of cocaine base involved in the relevant Conduct [sic] of Brian K. Hunter is approximately 35 grams, however, the exact quantity, either above or below 35 grams, is impossible to determine." This offense level was apparently a compromise by the government, since the guidelines provide for a level 30 when the amount in question is "[a]t least 35 G but less than 50 G of Cocaine Base." U.S.S.G. § 2D1.1(c)(5). The government also agreed to recommend a two-level reduction for acceptance of responsibility. The parties specified "that a sentence of 87 months [was] appropriate." Finally, Hunter "expressly waive[d] his right to appeal his sentence on any ground."
The district court conducted a fairly brief plea hearing. Although the AUSA referred to the appeal-waiver provision in the plea agreement while addressing the district court, the court did not mention the provision to Hunter, and did not explicitly ascertain that Hunter understood he was foregoing his appeal rights. With respect to the amount of cocaine attributable to Hunter, the AUSA stated that in addition to the 13.1 grams Hunter sold to the CI, "during the course of the conspiracy Mr. Hunter sold other cocaine to other persons which the Government is aware of. Therefore, we have agreed that to our best estimate the amount of cocaine involved is 35 grams." The defendant affirmed that he had no disagreement with this statement.
The presentence report stated that Hunter's total offense level was 27, and his criminal history category was III. The total offense level was arrived at by deducting two points for acceptance of responsibility from a base offense level of 29, as stipulated in the plea agreement. The criminal history category consisted of three points, one for each of three separate crimes, and an additional two points because Hunter had committed the instant offense while on probation for a June 1992 conviction for "frequenting places were [sic] drugs are possessed," which probationary period expired in June 1993. The resulting range was 87 to 108 months.
At the sentencing hearing, Hunter objected to being held accountable for 35 grams:
[DEFENSE COUNSEL]: Your Honor, I explained before, certainly at the time of the plea, the criminal history base levels, and the plea was obviously explained in full regarding the threshold of 35 grams which was agreed on in this case to arrive at the sentence, agreed upon sentence that we arrived at.
Now question is being made of me regarding that. I think I have explained it in every possible way, and still I am getting inquiry as to that 35 grams.
I don't know what else to tell Mr. Hunter. Perhaps the Court could inquire, we can clear it up, if there is a question about it; but I am completely satisfied that it's been adequately explained, both prior to the plea and subsequent to the plea.
THE COURT: Well, I am giving him an opportunity to say anything he wishes to say at this point. That's what I indicated to him.
THE DEFENDANT: I am asking about she gave me 35 grams of cocaine; below 35 grams. . . . It said above 35 grams. I didn't have no 35 grams.
THE COURT: It says that you are only held accountable for being in possession of an amount of cocaine above or below 35 grams of cocaine base instead of the full amount ...