United States v. Brown , 316 F. App'x 356 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 20, 2009
No. 08-50755
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
PAUL ALLEN BROWN
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:08-CR-24-1
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Paul Allen Brown pleaded guilty to aiding and abetting aggravated
identity theft. 18 U.S.C. §§ 1028A(a)(1), 2. He now seeks to appeal his sentence
on the bases (1) that the court erroneously represented to the parties that a
U.S.S.G. § 5K1.1 motion for downward departure was not allowed in cases
involving a statutory minimum and (2) that trial counsel was ineffective (a) for
not objecting to the court’s de facto finding and (b) for not seeking a § 5K1.1
downward departure.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50755
The Government argues that Brown was properly admonished at
rearraignment and that his appeal waiver provision bars his challenge to his
sentence. The Government also argues that the record is inadequately
developed to address Brown’s ineffective assistance of counsel claims.
The record reflects that Brown knowingly and voluntarily waived his right
to appeal his conviction and sentence but reserved his right to assert on appeal
or in postconviction proceedings claims of ineffective assistance of counsel and
prosecutorial misconduct. See United States v. McKinney, 406 F.3d 744, 746 (5th
Cir. 2005). Although Brown is correct that it was a misstatement of the law to
suggest that a downward departure is not allowed in cases involving a statutory
minimum sentence, see 18 U.S.C. § 3553(e); § 5K1.1, comment. (n.1), see United
States v. James, 468 F.3d 245, 247-48 (5th Cir. 2006), the magistrate judge
properly admonished Brown, as required by F ED. R. C RIM. P. 11, on the
consequences of his guilty plea and appeal waiver. The waiver was therefore
valid and bars a challenge to his sentence.1
The record is not sufficiently developed for this court to resolve Brown’s
ineffective assistance of counsel arguments. See United States v. Haese, 162
F.3d 359, 363 (5th Cir. 1998). Although defense counsel should have objected to
the court’s suggestion that a downward departure pursuant to § 5K1.1 was not
applicable in this case, the record is not sufficiently developed to determine
whether Brown suffered any prejudice from the court’s misstatement. Because
Brown did not waive a claim of ineffective assistance of counsel, he may pursue
such a claim in a timely 28 U.S.C. § 2255 proceeding. See Massaro v. United
States, 538 U.S. 500, 504-05 (2003).
AFFIRMED.
1
Defense counsel did not specifically address the appeal waiver or respond to the
Government’s argument regarding the appeal waiver. We caution counsel that pursuing a
basis for appeal that is waived by a valid appeal waiver and failing to address the waiver in
a reply brief after it is raised by the Government may result in sanctions. See United States
v. Gaitan, 171 F.3d 222, 224 (5th Cir. 1999).
2