UNITED STATES of America, Plaintiff-Appellee v. William Bruce CRAIN, Defendant-Appellant
No. 15-60146
United States Court of Appeals, Fifth Circuit.
December 14, 2017
877 F.3d 637
| Aggravated Robbery, Texas Penal Code § 29.03 | Crime No. 1 | Robbery Serious Bodily Injury | |
| Crime No. 2 | Robbery Uses a Deadly Weapon | ||
| Crime No. 3 | Robbery Exhibits a Deadly Weapon | ||
| Crime No. 4 | Robbery Status of the Victim | 65 or Older OR Disabled |
Damon R. Stevenson, Stevenson Legal Group, P.L.L.C., Jackson, MS, for Defendant-Appellant.
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant William Bruce Crain pleaded guilty to possession of child pornography and to using interstate facili
I. FACTS AND PROCEEDINGS
In 2008, Crain was charged with possession of child pornography (Count I) and using interstate facilities to transmit information about minors (Count II), in violation of
The plea agreement contained a section describing the maximum potential sentence. It stated, as to Count I, that Crain would receive a term of supervised release of at least three years and up to his lifetime. That statement of the maximum term of supervised release was correct, but the minimum term of supervised release for his offense was actually five years.2 The plea agreement also specified that if Crain should violate any condition of his supervised release, he could “be returned to prison for the entire term of supervised release[.]”
At Crain‘s plea hearing, the district judge mistakenly informed Crain that the maximum term of supervised release on Count I was three years. The judge also told Crain that if a defendant violates the conditions of supervised release, the district court would “decide what to do with the person [who violated terms of supervised release]” and that the court “could even send the person back to the penitentiary[.]” When Crain entered his guilty plea, he had already signed his plea agreement. He confirmed at his plea colloquy that he had read “each and every paragraph” of the plea agreement before he signed it.
After Crain pleaded guilty, the U.S. Probation Office prepared a Presentence Investigation Report (“PSR“) which stated the correct maximum and minimum term of supervised release, and recommended the maximum, that is, a lifetime of supervised release. The PSR also recommended special conditions of supervised release because Crain was a sex offender: (1) a prohibition of any Internet access at all and any computer use without permission from the Probation Office, (2) sex offender treatment, (3) polygraph examinations as directed by the Probation Office, (4) sex offender registration, and (5) warrantless searches by the Probation Office. Crain filed objections to the PSR before sentencing, but he did not address the inconsistent maximum and minimum terms of supervised release.
At the sentencing hearing, Crain stated that he had read the PSR and discussed it
Crain filed a notice of appeal of his sentence. The government filed a motion to dismiss Crain‘s appeal based on his appeal waiver. Crain responded that his depression medication and mental health issues had rendered him incompetent to plead guilty. In 2010, a panel of this court rejected that contention, concluding that the district court had adequately addressed Crain‘s competence at rearraignment, and dismissing Crain‘s appeal on the basis of his appeal waiver.
In 2011, Crain filed a pro se motion to vacate his sentence under
The government contended that Crain‘s motion should be denied based on his collateral-attack waiver, which Crain claimed was rendered invalid by the Rule 11 errors at his plea hearing. The district court ruled that the collateral-attack waiver was valid and barred all of Crain‘s claims other than his claims of ineffective assistance of coun
At that hearing, Crain‘s plea attorney testified that the government had considered bringing additional charges against Crain, but did not do so because of the plea negotiations. The attorney acknowledged that, before rearraignment, he had advised Crain that the court could impose up to a lifetime term of supervised release and that the conditions of release were generally discussed. That lawyer also testified that he knew that Crain might face some Internet restrictions, but it is unclear whether he discussed this with Crain.10
For his part, Crain testified that, before he entered his plea, his attorney never advised him that he could face a lifetime computer ban. Crain also claimed that he pleaded guilty based on the court‘s assurance at rearraignment that he would face no more than three years of supervised release on each count and that he first learned of the possibility of lifetime supervised release and computer restrictions when the court imposed sentence. But, he also admitted that when he received the PSR, his “main focus” was on the amount of time he would be imprisoned. He maintained that he was never told that he could return to prison for life for supervised release violations.
Crain also testified that if he had known he faced a lifetime computer ban or a lifetime term of supervised release, he would not have pled guilty, because these conditions would make it impossible for him to work after his release. He also claimed that, after reviewing the PSR, he asked his attorneys to withdraw his plea because the guideline range was longer than he expected, but that they told him it was too late to do so.11 He acknowledged, however, that he did not raise these concerns during allocution.
After the hearing, the court denied Crain‘s motion as to his remaining claims. The court concluded that counsel could not have known, before Crain pleaded guilty, what recommendations would be in the PSR. The court found that Crain‘s attorney advised him that he could be returned to prison if he violated conditions of super
The district court granted a certificate of appealability (“COA“) on the following issues: (1) whether the alleged Rule 11 errors rendered Crain‘s plea and collateral-attack waiver invalid; (2) whether counsel was ineffective for failing to advise Crain of the conditions of supervised release, (3) whether counsel was ineffective for failing to object to the court‘s understatement of the length of the supervised release term, and (4) “[w]hether the prosecution had subject-matter jurisdiction over [Crain‘s] case.”13 After Crain filed his opening brief, the government filed a motion to dismiss or for summary affirmance, and a panel of this court ordered briefing only on whether counsel was ineffective for failing to advise Crain of the possible special conditions of supervised release before he entered his plea.
II. ANALYSIS
A. Validity of Collateral-Attack Waiver
1. Alleged Rule 11 Errors
The government‘s motion to dismiss Crain‘s appeal dovetails with the first issue Crain raises, viz., whether the court‘s alleged Rule 11 errors invalidated Crain‘s guilty plea and his collateral-attack waiver. A reviewing court examines a defendant‘s challenge to a collateral-attack waiver de novo,14 but “[t]he district court‘s factual finding that [a defendant] was fully advised of the consequences of pleading guilty is reviewed for clear error.”15 As Crain acknowledges, however, the district court‘s decision to uphold the waiver in light of the alleged Rule 11 error is reviewed for plain error.16 “To establish plain error, [a defendant] is required to show that (1) there was error, (2) the error was plain, (3) the error affected his substantial rights, and (4) the error seriously affected the fairness, integrity or public reputation of judicial proceedings.”17 “[A] defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court[,]” he “has the burden to satisfy the plain-error rule“); see also United States v. Narvaez, 452 Fed. Appx. 488, 490-91 (5th Cir. 2011) (per curiam) (explaining that a challenge to an appeal waiver‘s validity that has a basis in a Rule 11 error “is in substance an attack on the court‘s conduct of the Rule 11 plea colloquy” that is reviewed for plain error when there is no contemporaneous objection (citation omitted)); United States v. Oliver, 630 F.3d 397, 411 (5th Cir. 2011) (“Because Oliver did not specifically object to the district court‘s plea colloquy . . . this court reviews [the defendant‘s challenge to his appeal waiver] for plain error.” (citation omitted)).
Crain alleged five Rule 11 errors in his motion, but addresses only two on appeal: the district court‘s purported failure to advise him of (1) the maximum term of supervised release and (2) the maximum sentence if he violated a condition of supervised release. But, when Crain pleaded guilty, he had already signed his plea agreement, and he testified that he had read every provision of the agreement before he signed it. The plea agreement explicitly states that the maximum term of his supervised release was life19 and that he could be returned to prison for the entire supervised release term—namely, his lifetime—for violating its conditions. There is nothing to indicate that if Crain had received this same information from a different source—specifically, the district court—he would have made a different decision.
As for the second alleged error, Crain also complains that he was not advised that the “minimum” penalty for violating a condition of supervised release is five years.20 This failure may not be a Rule 11 error at all: Rule 11 requires the district court to advise defendants of “any maximum possible penalty, including im
Crain‘s post hoc claim that he would not have pled guilty without these Rule 11 violations is contradicted by his statement at rearraignment that he had thoroughly read and understood the plea agreement. “Solemn declarations in open court carry a strong presumption of verity[,]” and “constitute a formidable barrier in any subsequent collateral proceedings.”23 Crain‘s testimony at the evidentiary hearing belies his own argument. He admitted that when he received the PSR, his “main focus” was on the amount of time he would be imprisoned, not the term or conditions of supervised release. This further suggests that neither the possible term of supervised release nor the minimum sentence for specific violations of its conditions were significant factors in Crain‘s decision to plead guilty. Even though Crain now states that
he was “confus[ed]” when the district court‘s statement conflicted with the plea agreement, he did not avail himself of the opportunity to clarify any confusion, either at the plea hearing or at allocution.
The cases that Crain cites in support are inapposite. He relies on four cases in which this court or other Courts of Appeals held that a plea was involuntary because the district court failed to state the correct maximum term of supervised release or imprisonment.24 But in each of those cases, there was no indication that the defendant was given the correct information in the plea agreement.25 Crain may well have hoped for a less onerous sentence, but he was expressly warned that it could be higher. “[W]hen the record of the Rule 11 hearing clearly indicates that a defendant has read and understands his plea agreement, and that he raised no question regarding a waiver-of-appeal provision, the defendant will be held to the bargain to which he agreed[.]”26 Crain has not shown “a reasonable probability that, but for the error, he would not have entered the plea.”27 We are satisfied that the Rule 11 errors Crain alleges do not invalidate his guilty plea or his collateral-attack waiver.
2. Jurisdictional Element of Plea
The fourth issue on which the district court granted a COA was “[w]hether the prosecution had subject-matter jurisdiction over [Crain‘s] case.” This amounts to a claim that the government did not have a factual basis sufficient to support the plea based on the jurisdictional element. If that were true, the conviction would have to be vacated;28 but such a conclusion would not void the government‘s jurisdiction to prosecute the offense. The district court determined that this claim was barred by Crain‘s collateral-attack waiver and did not address its substance. It merely issued a certificate of appealability on the issue.
An insufficient factual basis for a plea, however, can also invalidate a collateral-attack waiver: “Even valid waivers do not bar a claim that the factual basis is insufficient to support the plea[.]”29 We therefore construe this issue as another attack on the waiver and proceed to consider it, even though the district court did not. Whether Crain‘s waiver is valid is an issue of law that we would review de novo.30
To determine whether a defendant‘s factual basis is sufficient to support his guilty plea, the district court must examine each “element[] of the offense charged[.]”31 The jurisdictional element of Crain‘s offense required that the images in
Crain claims that the government “merely presumed that since the images were discovered on [Crain‘s] computer, the jurisdictional nexus had been met.” This understates the government‘s proffer. The government stated that it possessed e-mails and chats between a computer in Texas, and Crain‘s computer in Mississippi and that these e-mails and chats “trad[ed] . . . visual images depicting children engaged in sexual[ly] explicit conduct via the Internet[.]” The images therefore traveled between Texas and Mississippi—across state lines—via the Internet. The factual basis of the jurisdictional element is therefore satisfied, so this alternate challenge to Crain‘s plea and collateral-attack waiver also fails. The waiver is therefore valid and bars Crain‘s claims based on the Rule 11 errors, the jurisdictional element of the offense, and ineffective assistance of appellate counsel. We therefore dismiss Crain‘s appeal of those claims.
B. Ineffective Assistance of Counsel
Crain‘s collateral-attack waiver does not, however, bar his claims of ineffective assistance of counsel, because “an ineffective assistance of counsel argument survives a waiver of appeal . . . when the claimed assistance directly affected the validity of that waiver or the plea itself.”34 This court “review[s] de novo a district court‘s conclusions on a § 2255 petition based on ineffective assistance of counsel[,]” and “review[s] findings of fact for clear error.”35
An attorney renders constitutionally ineffective assistance if his performance is deficient and that deficient performance prejudices the defendant.36 A § 2255 movant must show that (1) counsel‘s performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel‘s deficient performance, the result of the proceeding would have been different.37 In the context of a guilty plea, a movant shows prejudice by establishing “that there is a reasonable probability that, but for counsel‘s errors, he would not have pled guilty and would have insisted on going to trial.”38
1. Failure to Object to the Court‘s Misstatement at Rearraignment
As detailed above, the undisputed record evidence shows that the written plea agreement correctly advised Crain that he faced a maximum supervised release term of life. Crain affirmed that he had read, reviewed with counsel, and understood this agreement, notwithstanding his conclusional argument to the contrary. As such, no prejudice resulted from counsel‘s failure to object to the district court‘s incorrect statement regarding the maximum term faced by Crain.39 Crain thus cannot show that the district court‘s denial of relief on this claim was error.
2. Failure to Advise of Special Conditions of Supervised Release
Finally, Crain claims that his attorney was ineffective for failing to advise him of the special conditions of supervised release. Although Crain‘s § 2255 motion nominally challenges all the special conditions of supervised release, he effectively complains of only the lifetime computer ban.40 This court has generally held that the Sixth Amendment requires defense counsel to advise defendants only about the direct consequences of pleading guilty, not the potential collateral consequences.41 But, in Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court held that defense counsel is constitutionally required to investigate and advise a client about possible deportation consequences of a plea before the client decides whether to plead guilty.42 The Court expressed that it did not need to consider whether the direct/collateral distinction was appropriate because of the “unique nature of deportation.”43 The characteristics that made deportation “unique” were that it was “particularly severe[,]” “intimately related to the criminal process[,]” and “nearly an automatic result” of conviction.44
Crain insists that a lifetime computer ban is similarly unique, so that defense counsel is obligated to warn a client of that potential consequence. One federal court has suggested that Padilla‘s protections could apply to other collateral consequences. The Eleventh Circuit expanded Padilla to the realm of civil commitment, holding that the defendant‘s attorney performed deficiently when he “affirmative[ly] [mis]represent[ed] that [the defendant] would not be exposing himself to further detention past his sentence” in the form of civil commitment.45 Addressing Padilla, the Eleventh Circuit explained that “the
Supreme Court has noted that when the law is unclear[,] a criminal defense attorney must advise his client that the ‘pending criminal charges may carry a risk of adverse [collateral] consequences.‘”46 But that appeals court did not analyze the issue at length, and the deficient performance in that case involved an “affirmative misrepresentation,” rather than the silence at issue here.47
The Seventh Circuit, by contrast, has stated that the Supreme Court‘s focus on the “unique” nature of deportation indicates that the Court “meant to limit its scope to the context of deportation only.”48 Two other federal circuits also declined to extend Padilla to other collateral consequences,49 but neither discussed how widely Padilla‘s holding might apply, and both compared the consequences at issue with Padilla‘s emphasis on the severity of deportation.50
It is true that a lifetime computer ban is a harsh penalty. And, after Crain filed his § 2255 motion, this court ruled that such bans are impermissible as overbroad and unreasonable.51 It may not equate to physical “banishment or exile”52 or amount to the loss of liberty embodied in a civil commitment,53 but a lifetime computer ban would “completely preclude [a defendant] from meaningfully participating in modern society for the rest of his life.”54 Such bans also appear intimately related to the criminal process, perhaps even more so than deportation: Unlike deportation, computer bans may only be imposed after a conviction. An onerous lifetime computer ban, however, is not “nearly an automatic re
We need not determine whether Crain‘s counsel was obligated to warn him of a possible lifetime computer ban, or—if so—whether counsel was therefore deficient in failing to do so, because Crain has not shown that he was prejudiced by this failure. The district court did not address the prejudice prong, but we address it here because it is an issue that we would review de novo.56 The Supreme Court recently addressed the prejudice issue in Lee v. United States, 137 S. Ct. 1958 (2017), in which it considered whether an attorney‘s misinformation about the consequences of a guilty plea on immigration status prejudiced the defendant, a question not addressed in Padilla.57 Lee, an immigrant from South Korea, was charged with “possessing ecstasy with intent to distribute[.]”58 During plea discussions, “Lee informed his attorney of his noncitizen status and repeatedly asked him whether he would face deportation as a result of the criminal proceedings.”59 The attorney “told Lee that he would not be deported as a result of pleading guilty.”60 This was incorrect: “[A] noncitizen convict
The Court noted that likelihood of success at trial was a strong indicator whether a defendant would plead guilty, but also concluded that “where [a court is] . . . asking what an individual defendant would have done, the possibility of even a highly improbable result may be pertinent to the extent it would have affected his decision-making.”63 The Court also explained that “[c]ourts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pled but for his attorney‘s deficiencies[,]” and that they “should instead look to contemporaneous evidence to substantiate a defendant‘s expressed preferences.”64 The Court noted that “Lee‘s claim that he would not have accepted a plea had he known it would lead to deportation [wa]s backed by substantial and uncontroverted evidence[,]”65 and concluded that Lee had therefore shown a “reasonable probability that, but for [his] counsel‘s errors, he would not have pled guilty and would have
insisted on going to trial.”66
That is not the case here. Crain presents only self-serving post hoc assertions about how he would have pled. The contemporaneous evidence at the time he pleaded guilty, by contrast, does not weigh in his favor. The government points out that (1) Crain admitted to possessing child pornography when the search warrant was executed at his home, (2) proceeding to trial may have subjected him to additional charges and deprived him of a sentencing credit for acceptance of responsibility, (3) he did not object to the computer ban at sentencing, and (4) he testified that when he received the PSR, his primary focus was on the amount of time he would spend in custody, not the term or conditions of supervised release. Crain‘s “post hoc assertion” is not sufficient to “upset [his] plea[.]”67 Crain thus was not prejudiced by his attorney‘s failure to inform him that he faced a possible lifetime computer ban as a condition of supervised release. We therefore affirm the district court‘s denial of Crain‘s motion as to his ineffective assistance claims.
We note, as an aside, that after Crain filed his § 2255 motion, but before he filed his opening brief in this case, this court decided United States v. Duke, holding that absolute, lifetime bans on computer usage as a condition of supervised release were overly broad and impermissible.68 Crain has never invoked Duke, and, even if he had, his valid waiver would bar such a challenge.69 We note, however, that Crain may seek modification of conditions of supervised release in the district court.70
III. CONCLUSION
We DISMISS Crain‘s appeal as to the alleged Rule 11 errors, the jurisdictional element of the offense, and ineffective assistance of appellate counsel. We AFFIRM the district court‘s denial of Crain‘s motion regarding his claims of ineffective assistance of counsel in the district court.
JACQUES L. WIENER, JR.
UNITED STATES CIRCUIT JUDGE