Opinion
Crim. No. 98-487-HA, Civil No. 00-1164-HA
February 9, 2001.
OPINION AND ORDER
Pending before the court is defendant's motion filed pursuant to 28 U.S.C. § 2255. A federal grand jury indicted defendant on one count of distribution of cocaine base and on one count of possession with intent to distribute cocaine base, both in violation of 21 U.S.C. § 841(a)(1). Defendant pleaded guilty to the charges on March 30, 1999, and under the terms of the agreement, the parties stipulated that 39 grams of cocaine base were involved in the offense. Defendant also waived his right to appeal. (Gov. Ex. A.) On August 23, 1999, the court sentenced defendant to 100 months incarceration on each count with both terms to be served concurrently, plus 5 years supervised release.
Defendant has now filed a § 2255 motion, asserting that he received ineffective assistance of counsel from his attorney, Jenny Cooke, because she provided erroneous advice during plea negotiations about the potential length of defendant's sentence. Defendant argues that because of Cooke's erroneous advice, his guilty plea was not knowing and voluntary. In support of the motion, Cooke has provided an affidavit averring that she misread the plea agreement: "Instead of reading the agreement that the government would recommend a sentence `at the low end of the guideline range . . . or five years, whichever is greater,' I read the agreement as `at the low end of the guideline range . . . or five years, whichever is less.'" (Cooke Aff. at 2.) After the guilty plea, pretrial services calculated defendant's sentence at a range of 100-125 months, instead of the 60 months she believed defendant would receive. (Id.) The court sentenced defendant to 100 months imprisonment at the bottom of the guideline range.
Defendant is not entitled to relief. The plea petition signed by both the defendant and Cooke acknowledges the maximum and minimum sentences that could be imposed. (Gov. Ex. A at 3.) Furthermore, the plea petition states,
If my lawyer or any other person has calculated a guideline range for me, I know that this is only a prediction and that the judge can impose the maximum sentence on me.
(Id.) The plea agreement also states that the length of the sentence is within the sole discretion of the court. (Id. at 9.) Further, the plea agreement states that defendant "understands that his sentence has not yet been determined by the Court, and that any estimate of a probable sentencing range is not a promise, and is not binding on the Attorneys for the Government, the Probation Office or the Court." (Id.)
In addition to these written acknowledgments, defendant made similar acknowledgments in open court. During the hearing on his guilty plea, defendant confirmed that he had reviewed and understood the plea agreement and petition. "These solemn declarations in open court carry a strong presumption of verity." Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989). The court asked defendant,
Q. With respect to the letter dated February 15, 1999, you understand that this letter is an agreement between you and the government, and as such, it's binding on you and the government, but it's not binding on the court?
And this means that at the time of sentencing, if you were to receive a sentence that was greater, or harsher than what you'd been led to believe you might receive, that would not be a basis for you to seek to withdraw your plea of guilty and ask to go forward with a trial.
Do you understand?
A. Yes.
Q. Okay. Are you sure?
A. Yes.
(Gov. Ex. B at 4.) The defendant then acknowledged that he could be sentenced for a minimum of five years to a maximum of forty years. (Id.)
Claims of ineffective assistance of counsel require the defendant to show that his counsel's performance was deficient and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to show prejudice in the context of a guilty plea, the defendant must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Bad advice about the length of a sentence rarely supports a finding of ineffective assistance of counsel. "[I]t is well established that an erroneous prediction by a defense attorney concerning sentencing does not entitle a defendant to challenge his guilty plea." United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990). If "the record indicates that [a defendant's] guilty plea was knowing and voluntary and made with full understanding that the court was not bound by any sentencing agreement," the defendant is not entitled to withdraw his plea. Id. Doganier v. United States, 914 F.2d 165, 168 (9th Cir. 1990). Relief is available only if counsel's prediction of the sentence was "a gross mischaracterization of the likely outcome of his case[.]" Doganier, 914 F.2d at 168.
The same standard appears to apply regardless whether the motion is couched in terms of withdrawal of the guilty plea or ineffective assistance of counsel. See Doganier, 914 F.2d at 168 (ineffective assistance of counsel); Garcia, 909 F.2d at 1349 (motion to withdraw a guilty plea).
Defendant argues that this case does not involve an error in his counsel's prediction of his sentence but rather an error in his counsel's understanding of the sentence the prosecutor would recommend. That distinction does not warrant application of a different standard. Regardless of the reason for counsel's erroneous advice, the crux of defendant's motion is that he was told the court might sentence him to a term of incarceration shorter than that which he actually received. Defendant was advised by the court, by the plea agreement, and by the plea petition that the court could sentence him to any term within the maximum and minimum range. Defendant knew that his sentence could fall anywhere within that range and nonetheless pleaded guilty. As a result, the "gross mischaracterization" standard applies to defendant's motion.
The court is aware of only one case in which the Ninth Circuit has held that an error in sentence prediction met this high standard. See Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986). In Iaea, the defendant's attorney told him that he would likely get only probation when instead he was facing, and ultimately was sentence to, life imprisonment. On the other hand, in cases involving erroneous sentence prediction of the same magnitude as defendant's, the Ninth Circuit has repeatedly held that the error did not rise to the level of a "gross mischacterization." See Doganiere, 914 F.2d at 168 (defendant sentenced to fifteen years instead of twelve years); Garcia, 909 F.2d at 1348 (defendant sentenced to 235 months instead of 116 months); United States v. Keller, 902 F.2d 1392, 1394 (9th Cir. 1990) (defendant sentenced to 144 months rather than 36 months); Shah v. United States, 878 F.2d 1156,1162 (9th Cir. 1989) (defendant sentenced to twelve years instead of an unspecified lesser term of incarceration).
In this case defendant received a sentence of 100 months rather than the 60 months he hoped to receive. He received a sentence considerably less than the maximum, and he was sentenced at the bottom of the sentencing guideline range. As a result, the court finds that counsel's mistake did not amount to a "gross mischaracterization" of his sentence. Consequently, defendant cannot maintain a successful claim for ineffective assistance of counsel, and he is not entitled to withdraw his guilty plea. Therefore, his § 2255 motion is denied, (doc. 1).
IT IS SO ORDERED.