United States v. Lamprecht ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-50598
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER MATTHEW LAMPRECHT,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Texas
USDC No. A-95-CR-10-ALL-SS
_________________________________________________________________
August 16, 2000
Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
I
Proceeding under the district court’s grant of a certificate
of appealability (“COA”), the petitioner, Christopher Lamprecht,
seeks review of the district court’s denial of his motion to
vacate, set aside, or correct sentencing pursuant to 28 U.S.C.
§ 2255.
The district court granted Lamprecht’s petition for a COA,
limited to three issues: (1) “whether the special condition of
*
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this opinion should not be published and is not precedent except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.
supervised release prohibiting the movant from using the Internet
or other computer networks violated the movant’s first amendment
rights”;1 (2) “whether the movant received ineffective assistance
of counsel at sentencing when the movant’s counsel failed to file
a notice of appeal when the movant so requested”; and (3) “whether
the movant’s due process rights were violated when the District
Court restricted the movant’s first amendment rights without giving
notice that such restrictions would be considered.”2 Finding that
Lamprecht’s claims lack merit, we affirm the district court’s
denial of habeas relief.
1
The petitioner does not raise this claim in his appellate
brief. Consequently, it is waived. See Ruiz v. United States, 160
F.3d 273, 274 (5th Cir. 1998)(stating that “issues not briefed on
appeal are waived”); Moawad v. Anderson, 143 F.3d 942, 945 & n.1
(5th Cir. 1998).
2
There is some suggestion in the record that the petitioner
raised a claim in the district court relating to an alleged breach
of the plea agreement by the government. In his appellate brief,
the petitioner does not expressly forward any such argument. The
only statement in the petitioner’s brief that could be construed to
implicate an alleged breach of the plea agreement is his bald
assertion in the “Facts” section of the brief that the special
conditions imposed on his supervised release “had no relation” to
his underlying money laundering conviction. However, because we
find that the special conditions imposed on the petitioner’s
supervised release are directly related to his conduct that led to
his conviction for money laundering and that they are necessary “to
protect the public,” see U.S.S.G. § 5F1.5 (discussing occupational
restrictions); see also 18 U.S.C. 3583 (West 2000)(discussing the
factor that the trial court must consider when imposing special
conditions on supervised release), his claim lacks merit. The
petitioner has failed to brief any other issue relating to an
alleged breach of the plea agreement. Any such claim therefore is
waived. See Ruiz, 160 F.3d at 274.
2
II
Lamprecht argues that he received ineffective assistance of
counsel when his attorney failed to file a notice of appeal
challenging his sentence--specifically, the condition of his
supervised release3–-despite his repeated request. Lamprecht
asserts that following his sentencing he told his attorney that he
wanted to appeal. His attorney told him that under the plea
agreement he had waived his right to appeal.4 Lamprecht argues
3
The district court imposed three special conditions on
Lamprecht’s three years’ supervised release: (1) that Lamprecht
could not “be employed where he is the installer, programer, or
trouble shooter for computer equipment”; (2) that he “may not
purchase possess, or receive a personal computer which utilizes a
modem”; and (3) that he “may not utilize Internet or other computer
networks.”
4
Lamprecht’s plea agreement contained the following waiver-of-
appeal provisions:
Defendant is aware that his sentence will be imposed
in conformity with the Federal Sentencing Guidelines and
Policy Statements. The defendant is also aware that a
sentence imposed under the Guidelines does not provide
for parole. Knowing these facts, defendant agrees that
this Court has jurisdiction and authority to impose any
sentence within the statutory maximum set for his
offense, including a sentence determined by reference to
the Guidelines, and he expressly waives the right to
appeal his sentence on any grounds, including any appeal
right conferred by 18 U.S.C. § 3742. However, should the
court depart upwards from its guideline calculation, then
in that event, the Defendant could appeal the
justification for and imposition of such an upward
departure, but no other issue as related to the
Sentencing Guidelines.
The Defendant is also aware that his sentence has not yet been
3
that counsel’s advise was erroneous, and that as a result, he lost
his right to appeal the terms of his sentence.5
In United States v. Wilkes, 20 F.3d 651 (5th Cir. 1994), we
addressed the claim of a § 2255 petitioner that “he received
ineffective assistance of counsel because his attorney . . . failed
to appeal his conviction or to inform [the petitioner] of his
ability to appeal.” Id. at 653. In Wilkes, the petitioner pled
guilty to a charge of possession of “crack” cocaine with the intent
to distribute. Id. at 652. Under his plea agreement, the
determined by the Court. The Defendant is aware that any estimate
of the probable sentencing range that he may receive from his
counsel, the government or the probation office, is a prediction,
not a promise, and is not binding on the government, the probation
office or the Court. Realizing the uncertainty in estimating what
sentence he will ultimately receive, the Defendant knowingly waives
his right to appeal the sentence or to contest it in any post-
conviction proceeding in exchange for the concessions made by the
government in this agreement. However, should the court depart
upwards from its guideline calculation, then in that event, the
Defendant could appeal the justification for and imposition of such
an upward departure, but no other issue as related to Sentencing
Guidelines.
5
As an initial matter, Lamprecht argues that the waiver in his
plea agreement does not cover the special conditions imposed on him
as part of his supervised release because the waiver only applies
to his sentence of imprisonment. Specifically, Lamprecht argues
that while he “clearly waived the right to appeal his sentence of
imprisonment, the language of the waiver makes no reference
whatsoever to the term of supervised release or to its special
conditions.” Lamprecht’s argument is meritless in that it is in
direct contradiction to our statement in United States v.
Benbrook, 119 F.3d (5th Cir. 1997), that “[a] period of supervised
release is part of the defendant’s sentence.” See id. at 341
n.10.
4
petitioner had waived his right to appeal his sentence on direct
appeal and in any post-conviction proceeding, including a
proceeding under 28 U.S.C. § 2255, absent an upward departure. Id.The court, discussing the merits of Wilkes’s claim of
ineffective assistance of counsel, stated:
Wilkes’s attorney cannot be considered deficient for
failing to raise claims knowingly and voluntarily waived
in the process of plea bargaining. Under the plea
agreement, Wilkes retained the ability to appeal only an
upward departure. The maximum sentence prescribed for
841(a)(1) is twenty years’ imprisonment, five years’
supervised release, a fine of $1,000,000, and a special
$50 special assessment. Wilkes was sentenced to 121
months’ imprisonment, five years’ supervised release, and
a $50 special assessment. His sentence falls within the
acceptable range, and no upward departure was imposed.
[Consequently,] no ineffective assistance can result from
a failure to appeal his sentence as an inappropriate
departure. Counsel is not deficient for, and prejudice
does not issue from failure to raise a legally meritless
claim.
Id. at 654 (citations omitted).
Turning to the instant case, Lamprecht pled guilty to one
count of money laundering in violation of 18 U.S.C. § 1956(a)(1).
Under the applicable sentencing guidelines, Lamprecht faced a
maximum sentence of 71 months imprisonment and a fine up to
$500,000. Further, under 18 U.S.C. § 3583(b), the court was
authorized to sentence Lamprecht to “not more than three years”
supervised release.6 The court sentenced Lamprecht to 70 months
6
When imposing occupational restrictions on the defendant’s
term of supervised release, the trial court must comply with
5
imprisonment and three years supervised release.7 Consequently,
because the sentence Lamprecht received fell within the perimeters
of the sentencing guidelines, the waiver contained in the plea
agreement barred any appeal based on the terms of the sentence that
he received. Thus, counsel was not ineffective for failing to file
U.S.S.G. 5F1.5, which provides in relevant part:
(a) The court may impose a condition of probation or
supervised release prohibiting the defendant from
engaging in a specified occupation, business, or
profession, or limiting the terms on which the
defendant may do so, only if it determines that:
(1) a reasonably direct relationship existed
between the defendant’s occupation, business,
or profession and the conduct relevant to the
offense of conviction, and
(2) imposition of such a restriction is reasonably
necessary to protect the public because there
is reason to believe that, absent such
restriction, the defendant will continue to
engage in unlawful conduct similar to that for
which the defendant was convicted.
U.S.S.G. 5F1.5.
As previously noted, given the nature of the underlying
offense to which Lamprecht pled guilty–-theft and interstate resale
of electronic components–-and the wide discretion that trial courts
are afforded in determining what conditions should be imposed on
the defendant’s supervised release, see United States v. Bird, 124
F.3d 667, 684 (5th Cir. 1997)(stating that “this court reviews a
district court’s entry of special conditions of supervision for an
abuse of discretion”)(citations omitted), the special conditions
imposed on Lamprecht’s supervised release are reasonable.
7
The court waived any fine because of “the defendant’s
inability to pay.”
6
the requested notice of appeal, because any such appeal would have
been a futile gesture.
III
As we have previously noted, the district court also granted
Lamprecht a COA on the issue of whether his “due process rights
were violated when the District Court restricted [his] first
amendment rights without giving notice that such restrictions would
be considered.” Lamprecht argues that the district court’s failure
to provide him with pre-sentencing notice of its intention to
impose special conditions on his supervised release resulted in a
violation of his constitutional right to due process. He fails to
identify any authority to support his contention that the Due
Process Clause requires trial courts to provide defendants with
pre-sentencing notice of their intentions to impose special
conditions on terms of supervised release. However, he seems to
fold this argument into a contention that Federal Rule of Criminal
Procedure 32 requires notice of the court’s intention to impose
conditions on his release.8
8
The district court denied Lamprecht’s request for a COA on
the issue of whether the trial court’s failure to provide him with
pre-sentencing notice of its intent to impose special conditions on
his supervised release resulted in a violation of Federal Rule of
Criminal Procedure 32. Thus, we are procedurally barred from
considering the merits of this argument in this appeal. However,
to the extent that Rule 32 and the Due Process Clause are
coextensive, we will assume that the challenges raised by Lamprecht
to his sentence under Rule 32 are his due process arguments.
7
In United States v. Mills, 959 F.2d 516 (5th Cir. 1992), we
considered whether pre-sentencing notice of the imposition of
occupational restrictions on supervised release was required under
Burns v. United States, 501 U.S. 129 (1991),9 or Federal Rule of
Criminal Procedure 32. We concluded that the occupational
restrictions imposed on Mills were not upward departures from the
sentencing guidelines and thus did not require pre-sentencing
notice to the defendant. Instead, the occupational restrictions
were “simply an exercise of the district judge’s authorized
discretion to impose additional terms of probation or supervised
release.” Id. at 519. In Mills we went on to state:
We do not believe it to be in the interest of justice or
the efficient administration of the sentencing process to
extend the notice requirements of Burns to cases where
the defendant’s term of confinement is not at stake.
Requiring trial judges to give prior notice of their
intent to impose an occupational restriction would only
further encumber the lengthy sentencing process without
adding anything to defendants’ existing procedural
protections.
Id.; see also United States v. Coenen, 135 F.3d 938, 942-43
(discussing Mills, and stating that when the special conditions
imposed on the defendant’s supervised release are related to the
underlying offense, pre-sentence notice is not required).
9
In Burns, the Supreme Court stated that Rule 32 requires
sentencing courts to give the parties notice of its intent to
depart from the applicable sentencing guidelines, whether upward or
downward, prior to sentencing. See Burns, 501 U.S. at 138-39.
8
Perhaps we should also mention that in an unpublished opinion,
United States v. Shugart, 1994 WL 175416 (7th Cir. 1994), the
Seventh Circuit, addressed a due process challenge to the
imposition of special conditions on a term of supervised release
without providing pre-sentencing notice. Id. at *2. The court
held that because the conditions of supervised release did not
constitute an upward departure, the imposition of such “conditions
of supervised release without notice of the specific provisions
prior to sentencing in no way violated [the defendant’s] right to
due process.” Id. at *3.
In sum, it is clear to us, that absent specific statutory
direction, when the special conditions imposed on a defendant’s
supervised release are consistent with those contemplated by 18
U.S.C. § 3583 and/or U.S.S.G. 5F1.5, and do not constitute an
upward departure within the meaning of Burns, neither Rule 32, nor
the Due Process Clause require the sentencing court to give pre-
sentencing notice of its intent to impose such conditions.
Therefore, the failure of the district court to provide Lamprecht
with pre-sentencing notice of its intent to impose special
conditions on his term of supervised release provides no basis for
habeas relief.
IV
9
For the reasons stated herein, the judgment of the district
court, denying habeas relief, is
A F F I R M E D.
10