Brian JEFFRIES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 12-1971
United States Court of Appeals, Eighth Circuit
August 6, 2013
Submitted: March 13, 2013.
724 F.3d 1008
court clearly erred in finding that he abused his position of trust to facilitate the conspiracy.
The district court found that “Mr. Gilbert‘s job in the conspiracy was to listen to the police radio . . . so he could notify the other co-conspirators if there was a police call that went out and give them the heads-up.” Based on this finding, the district court concluded that Gilbert‘s abuse of his position of trust “did contribute in some significant way to facilitating the commission of the conspiracy.” This finding is consistent with the record, as Williams and Davis both testified at trial that one of Gilbert‘s roles in the conspiracy was to listen to his police radio so that he could alert his accomplices if a patrol car had been dispatched to the location of the robbery. We therefore conclude that the district court did not clearly err by finding that Gilbert used his special knowledge or access to facilitate or conceal the offense. See Baker, 82 F.3d at 277.6
III. Conclusion
For the foregoing reasons, we affirm.
Troy Robert Morley, argued, AUSA, Pierre, SD, for appellee.
Before WOLLMAN, BYE, and COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.
Brian Jeffries pleaded guilty to one count of abusive sexual contact with a child, in violation of
Jeffries then moved to vacate, set aside, or correct his sentence under
A grand jury charged Jeffries with two counts of aggravated sexual abuse of individuals between the ages of twelve and sixteen. Pursuant to a written plea agreement, Jeffries pleaded guilty to one count of abusive sexual contact with a child. The government agreed to recommend that the court grant an adjustment for acceptance of responsibility for the crime, “unless there [was] significant evidence disclosed in the presentence investigation to the contrary.” The agreement also provided that the recommendations were “conditioned upon the defendant‘s full, complete, and truthful disclosure to the United States Probation Office.” The government‘s recommendations and the parties’ stipulations were not binding on the district court.
The agreed-upon factual basis set forth in the plea agreement stated that Jeffries “did knowingly and intentionally engage in sexual contact by force” with the underage victim. Before his plea hearing, however, Jeffries sent a letter to the district court to inform the judge of “the actual facts” in his case. In the letter, Jeffries denied using force and insisted that his relationship with the victim was consensual. He claimed that he “was scared into this plea agreement” and said he had lied at first. When the court questioned Jeffries about the letter during his plea hearing, Jeffries agreed with the factual basis in the plea agreement and asked the court to disregard his letter. The district court accepted Jeffries‘s plea and scheduled his sentencing hearing. After the plea hearing but prior to sentencing, Jeffries sent a similar letter to the probation office. In that letter and in an interview with a probation officer, Jeffries again asserted that his relationship with the victim was consensual.
Based on the letters and the interview, the probation office recommended against a reduction for acceptance of responsibility in the presentence report furnished to the court. Jeffries objected to the recommendation. At sentencing, the court asked the parties for their positions on the issue. Jeffries‘s counsel explained that Jeffries did not intend by his letters “in any way [to] step back from the plea that he‘s made.” The government stated its “hands are somewhat tied, given the plea agreement,” because “[t]he plea agreement states very clearly that the United States agrees to give acceptance of responsibility.” The government expressed its belief, however, “that the Court is on firm ground in not giving acceptance,” based on Jeffries‘s claims in his letters and interview that the sex was consensual. But citing the plea agreement, the government suggested that it could not argue against the acceptance-of-responsibility reduction “without some more significant evidence.”
The district court concluded that since his guilty plea, Jeffries had “denied his culpability for the crime to which he pled guilty,” and had “failed to demonstrate . . . his intent for acceptance of responsibility.” The court pointed to the inconsistencies between the factual basis set forth in Jeffries‘s plea agreement and his letters to the court and to the probation office. The court described Jeffries‘s positions regarding his culpability for forcible sexual contact as “miles apart,” and said “the record doesn‘t support the defendant‘s objection all that well.” The court then overruled Jeffries‘s objection and declined to award a reduction for acceptance of responsibility under
On direct appeal, Jeffries argued that the government breached the plea agreement by failing to recommend an acceptance-of-responsibility reduction. Jeffries I, 569 F.3d at 874. Because Jeffries did not object to the government‘s statements during sentencing, this court reviewed his claim for plain error. Id. at 875; see
Jeffries filed his pro se § 2255 motion on April 7, 2011. The case was referred to a magistrate judge, who recommended that the district court hold an evidentiary hearing on Jeffries‘s ineffective assistance claim. In an “Order Adopting in Part and Rejecting in Part Report and Recommendation and Denying Motion,” dated December 27, 2011, the district court denied relief without an evidentiary hearing. The court concluded that even if the government did breach the plea agreement, Jeffries did not show that he was prejudiced by counsel‘s failure to object to the alleged breach. Because Jeffries repeatedly denied responsibility for his crime, the court reasoned, there was no reasonable probability that “but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the same order, the district court granted a certificate of appealability on the ineffective assistance claim. Jeffries filed a notice of appeal, which was docketed on April 13, 2012.
II.
Before addressing the merits of Jeffries‘s claim, we must consider whether the appeal is timely such that we have jurisdiction. Determining the timeliness of the appeal requires analysis of the separate document requirement of
Assuming that
We conclude that
Of the courts of appeals to consider this question, only the Second Circuit has reached a contrary conclusion. In Williams v. United States, 984 F.2d 28, 29-31 (2d Cir.1993), the court determined that a motion under § 2255 is not subject to
So when was the district court‘s order denying the § 2255 motion entered? We have treated an order adopting a report and recommendation, without more, as a “judgment” for the purposes of
The district court‘s order of December 27, 2011, was replete with legal analysis. The order discussed the facts and detailed the reasons for the court‘s decision. The language dismissing Jeffries‘s § 2255 motion was included within the order. It was therefore not a “separate document” under
Because no separate document was filed in this case, judgment is considered entered on May 25, 2012—150 days after the filing of the order on December 27, 2011.
III.
On the merits, Jeffries argues that the district court erred in denying him an evidentiary hearing on his ineffective assistance claim. A petitioner is entitled to an evidentiary hearing on a § 2255 motion “[u]nless the motion and the files and records of the case conclusively show that [he] is entitled to no relief.”
A defendant alleging a violation of the Sixth Amendment right to counsel must show both that counsel‘s performance was deficient and that the deficiency prejudiced the defendant. Strickland, 466 U.S. at 687. To show prejudice, Jeffries must demonstrate a reasonable probability that his sentence would have been different but for the deficient performance. Puckett v. United States, 556 U.S. 129, 142 n. 4, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). A reasonable probability “is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Because both prongs of Strickland must be satisfied for a defendant to succeed on an ineffective assistance claim, we need not “address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697.
Jeffries argues that counsel failed to object to the government‘s breach of the plea agreement during his sentencing hearing. Jeffries first contends that if counsel had objected at sentencing, then the government would have recommended that the court grant the reduction. He claims there is a reasonable probability that the district court would have granted the reduction if the government had so recommended, and that the reduction would have resulted in a shorter term of imprisonment. Jeffries argues in the alternative that if counsel had objected and preserved the issue for appeal, then there
The government defends the professional competence of Jeffries‘s counsel, emphasizing that counsel reasonably could have concluded that the government had not breached the plea agreement in light of Jeffries‘s untruthful statements to the probation office. The government also contends that Jeffries cannot establish prejudice because his own conduct—not counsel‘s failure to object—led the district court to deny the acceptance-of-responsibility reduction.
The district court rejected Jeffries‘s claim of ineffective assistance of counsel without a hearing, and the record is not developed concerning counsel‘s contemporaneous rationale for the conduct Jeffries now challenges. While we might be able to assess the reasonableness of counsel‘s performance without inquiry into his thought processes, see Paul, 534 F.3d at 837-38, it is unnecessary to do so, because the record shows conclusively that Jeffries did not suffer prejudice.
Jeffries argued on direct appeal that the government breached the plea agreement by failing to recommend an acceptance-of-responsibility reduction. Jeffries I, 569 F.3d at 874. A panel of this court concluded that there was no obvious breach, and then added:
It is also unlikely that any error affected the district court‘s decision to deny a reduction based on an acceptance of responsibility. The district court concluded that Jeffries’ objection to the PSR‘s failure to credit him with acceptance of responsibility was not well supported and noted that “[s]ince his guilty plea, the defendant has denied his culpability for the crime to which he pled guilty and has tried to present a picture to this Court of a consensual sexual encounter.”
For similar reasons, we conclude that Jeffries suffered no prejudice from his counsel‘s failure to object to the government‘s comments at sentencing. Even giving Jeffries the full benefit of the stipulation, the prosecution was not required to object to the probation office‘s recommendation or to give an enthusiastic endorsement of a downward adjustment. United States v. Has No Horses, 261 F.3d 744, 750 (8th Cir.2001). In view of the judge‘s comments at sentencing, it is unlikely that he would have been moved by a tepid statement by the prosecutor conforming strictly to the stipulation. If the case had been reassigned to another judge for resentencing after a successful appeal, see Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), there is likewise no reasonable probability that a new judge would have assessed the matter differently. Jeffries‘s attempts to deny responsibility—both before and after entering a plea, in correspondence and in a personal interview—were plain to see. Indeed, the most noteworthy aspect of the government‘s conduct at sentencing may not be the alleged breach, but the puzzling insistence of the prosecutor (perhaps acting in an abundance of caution) that more significant evidence was required to justify abandoning the stipulation. If the hypothetical new sentencing court were to be influenced by advice, then the evaluation of the neutral probation office was more likely to hold sway than an unenthusiastic recommendation of a prosecutor who was bound by an agreement reached before Jeffries engaged in the offending conduct.
For these reasons, even assuming that Jeffries could show that his counsel‘s per-formance
* * *
The judgment of the district court is affirmed.
UNITED STATES of America, Plaintiff-Appellant v. Abby Rae COLE, Defendant-Appellee. United States of America, Plaintiff-Appellee v. Abby Rae Cole, Defendant-Appellant.
Nos. 11-1232, 11-1513
United States Court of Appeals, Eighth Circuit.
August 6, 2013
Submitted: Oct. 17, 2012.