Swain v. United StatesSwain v. United States
V.
The district court also properly denied Zimmerman‘s motion to compel the government to produce evidence, because he merely wants the government to produce an “accurate copy” of the very same Dell сomputer hard drive that he had ample opportunity to examine in the past. Any new evidence he gleans from such discovery could have been uncovered previously through the exercise of due diligence. Whatever evidence he finds could not justify ordering a new trial based on the discovery of new evidence. The district court did not abuse its discretion, therefore, when it denied Zimmerman‘s motion.
VI.
As for Zimmerman‘s sentence enhancement due to the prepubescent status of the girls depicted in some of the pornographic images, the sentencing guidelines applied by the district court have been held to be advisory rather than mandatory. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Zimmerman‘s sentence must therefore be reconsidered in light of Booker. See United States v. Oliver, 397 F.3d 369, 377 & n. 1 (6th Cir.2005).
VII.
We AFFIRM the district court‘s denial of Zimmerman‘s motions and its denial of his request for an evidentiary hearing, but VACATE his sentence and REMAND the case to the district court for resentencing.
OPINION
R. GUY COLE, Jr., Circuit Judge.
Petitioner-Appellant Victoria Swain appeals the denial of her motion pursuant to
Swain was charged alongside two dozen others in connection with a cocaine distribution ring in Detroit, Michigan. Swain faced four counts of distributing cocaine,
Notwithstanding the Agreement, Swain initially pleaded not guilty before the district court. Following a consultation with her defense counsel, however, Swain pleaded guilty to counts 4, 5, and 7. At the plea colloquy, the judge informed Swain of her constitutional rights and asked the prosecutor to present the terms of the Agreement. The prosecutor did so faithfully—including the Government‘s recommendation of a 262 to 327 month sentence range—and Swain acknowledged that she understood the Agreement.
The court then asked defense counsel whether Swain had any objections to the sentencing recommendation attached to the Agreement. Defense counsel replied that Swain ought to be held accountable only for the amount and type of drugs (cocaine powder) that she sold in connection to counts 4, 5, and 7. Accordingly, defense counsel recommended a sentence range of 46 to 57 months. The prosecutor acknowledged that counts 4, 5, and 7 relate “to powder cocaine or regular cocaine not cocaine bas [sic]” but added that Swain “sold both cocaine base and powder cocaine during the course of what would be relevant conduct for this matter.” According to the prosecutor, this conduct could be used as the basis for a higher sentence, as long as the sentence did not go beyond the statutory maximum of 20 years.
The district judge recognized the disconnect. In light of the lack of “agreement with respect to the amount of time here,” the judge asked, “is there an opportunity to withdraw the plea?” Defense counsel declined the invitation.
The Presentence Investigation Report (“PSI“) recommended a sentencing range of 262 to 327 months based on a total offense level of 39. The PSI began with the counts to which Swain pleaded guilty, namely, the three violations of
At sentencing, defense counsel reiterated his position that Swain should only be sentenced for the activity underlying counts 4, 5, and 7 of the indictment. He
On March 13, 2001, well into the evidentiary hearing, the two parties agreed to several stipulations and to a resulting base level of 31. No mention was made of the amount or type of drug, but Swain agreed to a two-level enhancement for the use of a wеapon and the Government agreed not to seek an enhancement for Swain‘s role in the offense. The district court accepted the stipulation and determined the guideline range to be 108 to 135 months. The court sentenced Swain to 108 months, the bottom of the guideline range.
Swain appеaled her sentence without success on the ground that facts increasing her sentence beyond the statutory maximum—namely, the amount of drugs and the existence of a weapon—were not proven beyond a reasonable doubt, in alleged violation of Apprendi. See United States v. Rueda, 61 Fed.Appx. 156 (6th Cir.2003). Swain then filed a motion to vaсate her sentence. The district court denied the motion and Swain appealed to this Court, which has jurisdiction pursuant to
II.
Swain filed her initial § 2255 motion pro se. Accordingly, she is entitled to some leeway. Franklin v. Rose, 765 F.2d 82, 85 (6th Cir.1985) (“The allegations of a pro se petition, ‘though vague and conclusory, are entitled to a liberal construction.’ “). Swain argues on appeal that her plea was involuntary, her assistance ineffective, and her sentence the product of judge-found facts. These challenges are consistent, if not coterminous, with her § 2255 motion.
A. Voluntariness
Because she did not raise it (or its equivalent) on direct review, the claim of involuntariness has been procedurally defaulted. Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (“[E]ven the voluntariness and intelligenсe of a guilty plea can be attacked on collateral review only if first challenged on direct review.“). To overcome procedural default, Swain must show cause and prejudice, or actual innocence. Id. at 622-23. She has not.
The record reveals no coercion or decеption by the prosecutor or the district court. Swain signed an Agreement, clause three of which expressly states that the conduct underlying the dismissed counts could be used in sentencing. The Agreement also references an attached worksheet that estimates Swain‘s sentence range as bеtween 262 and 327 months. At the colloquy, the prosecutor reiterated the estimated sentence range and again referred to the relevance of the conduct underlying the dismissed counts. When it became clear to the judge that Swain‘s counsel had estimated a much lower sentence range, the judge asked if there was “an opportunity to withdraw the plea.” The prosecutor said he thought that Swain‘s plea was voluntarily given and Swain‘s counsel agreed, stating, “That‘s correct, your honor. We trust the Court will determine the appropriate sentence.”
Thus, Swain had “real notice of the true nature of the charges against [her.]” Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) (internal citation omitted). That she estimated the penalty incorrectly does not render her plea involuntary. See Bousley, 523 U.S. at 619. Swain was not misled by the Government but, if at all, by her
Swain initially argued that her indictment and plea agreement were defective and coercive in that they failed to allege a drug quantity (or type, although type is a function of quantity in this context). Swain argues on appeal from the denial of her motion that these defects somehow render her plea involuntary. The failure to state a drug amount does not render a drug distribution indictment constitutionally infirm. United States v. Stewart, 306 F.3d 295, 310 (6th Cir.2002). The only limitation imposed by the failure to state a drug quantity is that the defendant‘s sentence may not exceed the statutory maximum of 20 years. Id.; see also
Accordingly, we find Swain‘s claim of involuntariness procedurally defaulted.
B. Ineffective Assistance of Counsel
Swain alleges that her counsel was ineffective in violation of her Sixth Amendment right. Unlike the claim of voluntariness, the claim of ineffective assistance of counsel does not require a showing of cause and prejudice. Sеe Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). We review claims of ineffective assistance of counsel de novo. Towns v. Smith, 395 F.3d 251, 258 (6th Cir.2005). To show ineffective assistance, a defendant must demonstrate against a strong presumption that her counsel was so deficient that he did not function as the counsel guaranteed by the Constitution. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Furthermore, a defendant must show that her counsel‘s performance prejudiced her defеnse, in the sense that there was a reasonable probability that the outcome of her case would have been different had her counsel been competent. Id.; Towns, 395 F.3d at 258.
Counsel‘s deficiency is apparent from the record. Counsel advised Swain that Apprendi would limit her sentence to the facts undеrlying the counts to which she pleaded. Apprendi did not apply: the outermost range to which Swain could be sentenced did not exceed the statutory maximum of 20 years under
Swain has satisfied the first prong of Strickland. In order to satisfy the second prong in the context of a plea, Swain must show that “there is a reasonable probability that, but for counsel‘s errors, [she] would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. The record shows the opposite.
Finally, Swain had a powerful incentive to enter a guilty plea, even with the understanding that she could serve 108 months. Swain was indicted on six charges. According to the PSI, conviction on the gun charge alone would have resulted in a mandatory, non-consecutive five-year sentence. The two-level gun enhancement changed her minimum sentence from 87 to 108 months—a difference of 1.75 years. On each of the counts to which Swain actually pleaded, moreover, and assuming only the facts of her allocution, she could have been sentenced to as mаny as 20 years.
It is theoretically possible that, were it not for counsel‘s erroneous advice, Swain would have insisted on going to trial. However, neither the record nor her brief converts this possibility into a reasonable probability. Accordingly, we find that Swain fails the second Strickland prong: she has not shown prejudice.
C. Unproven Facts Underlying Sentence
Although he was mistaken at the time, Swain‘s trial counsel proved oddly prescient. Were this a direct appeal, Swain might be entitled to remand under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and its progeny. These cases, unlike Apprendi, hold that a sentеnce must be based on facts admitted or proven beyond a reasonable doubt. See United States v. Amiker, 414 F.3d 606, 607-08 (6th Cir.2005) (applying this principle to guilty pleas). Yet neither Blakely nor its federal counterpart, United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), may be invoked on collateral review. Id. at 769; Humphress v. United States, 398 F.3d 855, 860 (6th Cir.2005). Moreover, Swain‘s sentence could be upheld even on direct appeal under Booker. Swain agreed to be sentenced based on additional, relevant conduct and specifically stipulated to the enhancement for a firearm and an offense level of 31. Swain may constitutionally stipulate to facts and even consent to judicial fact-finding by plea agreement. Amiker, 414 F.3d at 607. Accordingly, we find that Swain is not entitled to remand.
III.
For the reasons stated above, we AFFIRM the district court‘s denial of Swain‘s § 2255 motion to her vacate sentence.
R. GUY COLE, Jr.
CIRCUIT JUDGE