United States v. Rennick , 219 F. App'x 486 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0192n.06
Filed: March 12, 2007
United States Court of Appeals
FOR THE SIXTH CIRCUIT
___________
No. 06-3186
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Ohio.
Steve Rennick, Sr., *
*
Defendant - Appellant. *
___________
Before MOORE, ROGERS, and JOHN R. GIBSON,1 Circuit Judges.
PER CURIAM.
Steve Rennick, Sr., pro se, appeals his conviction and sentence on a guilty plea
to conspiracy to distribute in excess of 100 kilograms of marijuana. He contends that
his guilty plea was not voluntary and knowing, he received ineffective assistance of
counsel, the sentence violates his constitutional rights, and the government breached
the plea agreement. We AFFIRM.
1
The Honorable John R. Gibson, United States Circuit Judge for the Eighth
Circuit Court of Appeals, sitting by designation.
On November 6, 2002, Rennick and several co-defendants were indicted for
conspiracy to distribute in excess of 100 kilograms of marijuana in violation of 21
U.S.C. §§ 846, 841(a)(1), (b)(1)(B)(vii), among other charges. At a plea colloquy on
August 18, 2003, the district court informed Rennick of his rights, inquired into the
voluntariness of his plea, and entered a guilty plea to the conspiracy count.
Following his plea, Rennick agreed to be a confidential informant to law enforcement
agents and assist in an ongoing investigation. During the time he was awaiting
sentencing, Rennick was seriously wounded by gunshots.
Rennick was sentenced on January 28, 2004. At the hearing, he sought a
downward departure for substantial assistance based on his activities as a confidential
informant. The government refused to move for the downward departure, explaining
that it had determined that Rennick had not provided substantial assistance because
he failed to follow the agents' instructions. Under the Sentencing Guidelines, the
potential sentence for the offense ranged from 60 to 63 months, and the district court
sentenced Rennick to 63 months. Rennick objected, claiming that a law enforcement
agent had promised him probation in exchange for his service as a confidential
informant. In response to the district court's inquiry concerning his appeal rights,
Rennick's attorney, William Gallagher, requested that the clerk of court file a notice
of appeal on Rennick's behalf immediately after filing the judgment.
According to Rennick, he is innocent, always wanted to go to trial, and pled
guilty only after succumbing to a sudden barrage of pressure from Gallagher, two co-
defendants, and the prosecutor. The day after he was sentenced, Rennick discharged
Gallagher and retained a new attorney.2 His new counsel filed motions to reconsider
2
In a supplemental letter brief recently filed with this court, Rennick argues that
Kenneth L. Lawson II, who replaced Gallagher, is not actually an attorney and, thus,
that Rennick's Sixth Amendment right to counsel was violated. Even if Rennick's
allegation concerning Lawson is true, however, it is irrelevant to the resolution of the
instant appeal, which arises from events (including Rennick's guilty plea and
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the sentence and to withdraw the guilty plea, which the district court denied. Neither
the clerk of court nor Rennick's new attorney ever filed a notice of appeal of his
conviction and sentence. When Rennick eventually learned of this in late 2004, he
sought reinstatement of his appeal rights through a motion filed pursuant to 28 U.S.C.
§ 2255. On January 23, 2006, the district court granted the motion in part and
vacated and reimposed Rennick's sentence for the limited purpose of allowing him
to pursue this direct appeal. In his section 2255 petition, Rennick also argued that his
plea was involuntary, he received ineffective assistance of counsel, the government
breached the plea agreement, and he was entitled to a downward departure. The
district court dismissed these claims without prejudice as unripe, with the expectation
that Rennick will be able to raise the claims in a section 2255 proceeding if he is not
successful in this direct appeal.
Rennick first challenges the voluntariness of his plea on several interlinked
bases. He argues that he lacked capacity to enter a voluntary and knowing plea
because he was suffering from post-traumatic stress disorder, was coerced to plead
guilty by various parties, and received ineffective assistance of counsel. We apply
a harmless error standard and will vacate Rennick's plea only if the district court did
not substantially comply with Rule 11 of the Federal Rules of Criminal Procedure in
accepting the plea and that noncompliance affected Rennick's substantial rights.
United States v. Valdez, 362 F.3d 903, 908 (6th Cir. 2004).
Before accepting a guilty plea, a district court must advise the defendant of
certain rights, address the defendant personally in open court and determine that the
plea is voluntary and did not result from force, threats, or promises (other than
promises in a plea agreement), and determine that a factual basis exists for the plea.
Fed. R. Crim. P. 11(b). Rennick has not demonstrated any flaw with the district
sentencing) that occurred before Lawson entered an appearance on Rennick's behalf.
Accordingly, we decline to address the issue.
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court's compliance with Rule 11. We briefly recount the portions of the colloquy that
are most relevant to Rennick's challenge. In assessing Rennick's mental capacity to
enter a voluntary and knowing guilty plea, the district court questioned him about
whether he had "ever been treated for any mental illness or addiction to narcotics of
any kind," and he informed the court that he was still being treated for post-traumatic
stress disorder. The court confirmed that Rennick had not taken "any narcotic drugs
or other medicine or pills or consumed any alcoholic beverages" in the 24 hours
before the plea colloquy. The court also asked Rennick's attorney whether he had any
doubts about Rennick's competency to enter a plea. Similarly, in determining whether
Rennick's plea was the product of coercion, the court inquired whether his decision
to plead guilty was his "own free and voluntary act," and Rennick said that it was.
The district court also asked whether he had been "subjected to any threats or force
of any kind" that caused him to plead guilty, and, in response, Rennick denied any
such threats or force. He also denied that anyone, including an officer or agent of the
government or the lawyers in the case, had promised or suggested that he would
receive a lighter sentence if he pled guilty. Rennick responded affirmatively when
the court asked whether he believed that his attorney was "fully informed about the
facts and circumstances" on which the charges were based and whether he was
satisfied with his attorney's advice and representation. The court informed Rennick
that he faced a minimum sentence of five years. Thus, the district court fully
complied with Rule 11 in accepting the guilty plea, and Rennick is bound by his
responses indicating that his plea was knowing and voluntary. See Baker v. United
States, 781 F.2d 85, 90 (6th Cir. 1986).3
3
An adequate evaluation of Rennick's claim that he was coerced into pleading
guilty by the prosecution's offer of a “package plea” cannot be resolved without
further factual development. See Cornett v. Lindamood, 203 F. App'x 691 (6th Cir.
2006). Accordingly, that claim is most appropriately raised in a petition filed
pursuant to 28 U.S.C. § 2255.
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Rennick insists that his guilty plea cannot be voluntary under any
circumstances because he is actually innocent. At the plea colloquy, Rennick agreed
that the government's statement of facts implicating him in the conspiracy was correct
and said he wished to plead guilty. Rennick now argues that he wanted to object to
the government's factual statement and assert his innocence, that he made nonverbal
gestures to this effect, and that his attorney instructed him to proceed with the guilty
plea. To the extent that Rennick suggests that his hesitation during the plea colloquy
undermines the factual basis for the plea, Rule 11(f) does not require "strong evidence
of actual guilt." United States v. Tunning, 69 F.3d 107, 112 (6th Cir. 1995). Rather,
the court must "satisfy it[self] that there is a factual basis for the plea." Id. The
government's factual statement, which Rennick confirmed was correct, gave the
district court a sufficient factual basis for entering the plea. Moreover, Rennick's
statements to the court carry a strong presumption of truthfulness, Blackledge v.
Allison, 431 U.S. 63, 74 (1977), and his plea "serves as an admission that he is not
innocent of the crimes charged." Luster v. United States, 168 F.3d 913, 916 (6th Cir.
1999). His claim of actual innocence on appeal does not show that his plea was
involuntary.
Second, Rennick argues that he received ineffective assistance of counsel in
pleading guilty. We ordinarily "will not review a claim of ineffective assistance of
counsel on direct appeal because the record is usually insufficient to permit an
adequate review of such a claim." United States v. Gardner, 417 F.3d 541, 545 (6th
Cir. 2005). That is the case here, where the record contains little evidence that would
allow us to assess Gallagher's performance. Of course, Rennick is free to develop a
record in support of his ineffective assistance claim in a postconviction proceeding
brought pursuant to 28 U.S.C. § 2255. See United States v. Hall, 200 F.3d 962, 965
(6th Cir. 2000).
Third, because Rennick properly objected at his resentencing, this Court
reviews the alleged violation of his constitutional rights under United States v.
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Booker, 543 U.S. 220 (2005), for error. See United States v. Brown, 444 F.3d 519,
521-22 (6th Cir. 2006). Rennick received a 63-month sentence for his conviction for
conspiracy involving 100 kilograms or more of marijuana. 21 U.S.C. §
841(b)(1)(B)(vii). He has not argued that his sentence is unreasonable or that the
district court committed Booker error by treating the Sentencing Guidelines as
mandatory; indeed, the district court recognized the advisory nature of the Guidelines
at his resentencing. Rather, Rennick argues that his sentence violates his Fifth and
Sixth Amendment rights because the quantity of marijuana involved in the
conspiracy--which triggered a statutory mandatory minimum sentence of 5 years and
a Guidelines range of 60 to 63 months--was never proven to a jury beyond a
reasonable doubt.
Because Rennick's sentence was authorized solely on the basis of the drug
quantity he admitted, it does not violate his constitutional rights. See United States
v. Murdock, 398 F.3d 491, 501-02 (6th Cir. 2005) (citing Blakely v. Washington, 542
U.S. 296, 303 (2004), and Booker, 543 U.S. at 244). Rennick's guilty plea to count
one of the indictment established the fact that the conspiracy involved "in excess of
one hundred (100) kilograms of marijuana." See United States v. Broce, 488 U.S.
563, 570 (1989); United States v. Garcia, 252 F.3d 838, 843-44 (6th Cir. 2001). In
addition, at his plea colloquy, he confirmed the accuracy of the government's
statement that he had transported "approximately 500 pounds of marijuana," and his
plea agreement provided that, by signing it, he admitted his involvement in a
conspiracy to distribute "in excess of 100 kilograms of marihuana." Rennick claims
that his admissions during the plea process were false and involuntary because they
were coerced by his attorney, co-defendants, and the prosecutor. Statements made
under oath in response to a judge's questions, however, carry a "strong presumption"
of truth. Blackledge, 431 U.S. at 74; see also Baker, 781 F.2d at 90. A defendant is
bound by his responses to the district court's inquiries where the district court has
scrupulously followed the Rule 11 procedures, as the court did in this case. See
Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999). Thus, the district court did not
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violate Rennick's constitutional rights under Booker by sentencing him in accordance
with his own admissions.
Rennick also argues that the district court improperly struck his objections to
the presentence report and that it should have ordered a new presentence report for
his resentencing. Rennick did not object to the presentence report at his initial
sentencing, and a failure to object to the presentence report waives future objections.
United States v. Ward, 190 F.3d 483, 492 (6th Cir. 1999). Nor has Rennick pointed
to new facts that would justify ordering a new presentence report where the purpose
of resentencing was limited to reimposing his sentence so that he could pursue a
direct appeal.
Finally, Rennick contends that his sentence should be vacated because the
government breached the plea agreement by failing to move for a downward
departure for substantial assistance. The plea agreement provided that the
government, "in the sole discretion of the United States Attorney," would file a
motion for a downward departure if Rennick provided substantial assistance in
investigating and prosecuting others. "[W]hen a plea agreement allocates complete
discretion to the government to consider whether a substantial assistance motion
should be filed, we may only review the government's decision for unconstitutional
motives." United States v. Moore, 225 F.3d 637, 641 (6th Cir. 2000). Rennick has
not alleged that the government's decision not to move for the departure was based
on unconstitutional motives, and we see no evidence of such motives in the record.
The government reasonably explained at sentencing that Rennick had not provided
substantial assistance because he "would not follow the requests and advice of the
agents." Thus, the government did not breach the plea agreement and Rennick is not
entitled to vacation of his sentence on that basis.
For the above reasons, we affirm Rennick's conviction and sentence.
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