United States v. White , 111 F. App'x 274 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 12, 2004
Charles R. Fulbruge III
Clerk
No. 04-50026
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAMELA BEASLEY WHITE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-03-CR-183-ALL-SS
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Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Proceeding pro se, Pamela Beasley White, federal prisoner
# 392218-180, appeals her guilty-plea conviction for health-care
fraud and money laundering in violation of 18 U.S.C. §§ 1347, 1957.
White argues that her appointed counsel was ineffective for failing
to provide her with potentially mitigating information. She
asserts that without the information, she could not present a
proper defense. White also has filed a motion to supplement the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-50026
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record on appeal with the information that she alleges should have
been provided to her by counsel.
A claim of ineffective assistance of counsel generally cannot
be addressed on direct appeal when the claim was not before the
district court because no opportunity existed for development of
the record on the merits of the allegation. United States v.
Brewster, 137 F.3d 853, 859 (5th Cir. 1998). The record is not
sufficiently developed with regard to the information that White
alleges was not provided by counsel. Accordingly, her ineffective-
assistance claims will not be addressed in this direct appeal. See
id.White also argues that her guilty plea was induced by a
combination of (1) a district attorney improperly delivering a
subpoena to her and threatening her to plead guilty or go to prison
for 20 years; (2) her attorney’s presentation of a plea agreement
“which had written in it that the government would recommend
offense level 17[;]” and (3) her being misled by the prosecution
regarding the offense level.
A guilty plea involves the waiver of several constitutional
rights, and, accordingly, it must be made knowingly and
voluntarily. United States v. Reyes, 300 F.3d 555, 558 (5th Cir.
2002). Because White did not attempt to withdraw her guilty plea
in the district court, and she made no objections concerning the
plea, review of the voluntariness of the plea is for plain error
only. See United States v. Brown, 328 F.3d 787, 788 (5th Cir.
No. 04-50026
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2003); United States v. Cothran, 302 F.3d 279, 283 (5th Cir. 2002).
Under plain error review, the defendant has the burden of showing
that there is an error that affected her substantial rights.
United States v. Vonn, 535 U.S. 55, 62-63 (2002). Because relief
under the plain-error standard of review is within the court’s
sound discretion, the alleged error must also seriously affect “the
fairness, integrity, or public reputation of the judicial
proceedings.” Brown, 328 F.3d at 789 (internal quotations
omitted).
At the plea hearing, the district court asked White whether
anyone had attempted to coerce or intimidate her into pleading
guilty. The court also asked White whether anyone had promised her
any benefit outside of the plea agreement in exchange for her plea.
White responded in the negative.
“Solemn declarations in open court carry a strong presumption
of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977)(28
U.S.C. § 2254 case). Thus, a reviewing court will “give great
weight to the defendant’s statements at the plea colloquy.”
Cothran, 302 F.3d at 283-84. Although the barrier imposed by
declarations made during the plea colloquy is imposing, it is not
insurmountable. Blackledge, 431 U.S. at 74. Thus, a defendant who
offers specific factual allegations supported by sworn
documentation may be entitled to further development of his
allegations. See United States v. Fuller, 769 F.2d 1095, 1099 (5th
Cir. 1985)(28 U.S.C. § 2255 case).
No. 04-50026
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Having considered each of White’s unsworn allegations, we give
White’s solemn declarations in open court more weight that her
belated, self-serving assertions on appeal. See Cothran, 302 F.3d
at 284. Further, even accepting White’s allegations as true, White
herself acknowledges that the stipulation regarding the offense
level was that the Government would recommend an offense level of
17, not that it would guarantee one. See United States v. Bleike,
950 F.2d 214, 222 (5th Cir. 1991)(a sentencing court is not bound
by the government’s recommendations in the plea agreement). White
thus cannot show that her substantial rights were prejudiced by the
alleged promise to recommend an offense level of 17. See United
States v. Wheeler, 322 F.3d 823, 828 (5th Cir. 2003)(under plain-
error review, this court will uphold a sentence if it is within the
appropriate sentencing range and could be reinstated on remand).
White also argues that the Government breached the plea
agreement by failing to file a motion for a downward departure
under U.S.S.G. § 5K1.1. Because White did not raise this issue in
the district court, review is for plain error. See United States
v. Henry, 372 F.3d 714, 716 (5th Cir. 2004).
Under the plea agreement, the Government retained the
discretion to file a motion for a downward departure if White
provided substantial assistance in its investigation. The district
court confirmed that White understood the substantial-assistance
provision of the plea agreement.
No. 04-50026
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The decision to file a § 5K1.1 motion is within the discretion
of the Government. United States v. Aderholt, 87 F.3d 740, 742
(5th Cir. 1996). Although the Government may “bargain away its
discretion, it did not do so in this case.” See id. The judgment
of the district court should is AFFIRMED. White’s motion to
supplement the record is DENIED.