United States v. L.C. Davis , 79 F. App'x 943 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3624
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
L. C. Davis, * [UNPUBLISHED]
*
Appellant. *
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Submitted: September 9, 2003
Filed: October 31, 2003
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Before WOLLMAN, BOWMAN, and RILEY, Circuit Judges.
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PER CURIAM.
This appeal follows Davis’s plea of guilty to one count of conspiracy to possess
with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C.
§ 846. After entry of the plea and acceptance of the plea agreement, the district court1
sentenced Davis to 135 months’ imprisonment. On appeal, Davis argues that the
1
The Honorable Susan Webber Wright, Chief Judge, United States District
Court for the Eastern District of Arkansas.
district court committed error during the plea hearing, that the government breached
the plea agreement, and that his counsel was ineffective. We affirm.
I.
As a threshold question, Davis urges us to apply the harmless error standard of
Fed. R. Crim P. 11(h)2 when reviewing his claims about the plea hearing even though
he failed to object to any alleged errors. United States v. Vonn, 535 U.S. 55 (2002),
forecloses that possibility, however, for there the Court held that alleged errors at a
Rule 11 hearing must be reviewed for plain error under Fed. R. Crim. P. 52(b) when
the defendant fails timely to object. Id. at 58-59.
Davis raises three Rule 11 arguments. First, he claims that the district court
failed to inform him of, and determine that he understood, the nature of the charge
against him. Fed. R. Crim. P. 11(b)(1)(G). We look to the “totality of the
circumstances” when deciding whether the district court erred in its determination.
United States v. Marks, 38 F.3d 1009, 1011 (8th Cir. 1994) (quoting United States v.
Nieuwsma, 779 F.2d 1359, 1361 (8th Cir. 1985)). We may properly consider the
indictment, any discussions Davis had with his attorney, and any other facts in the
record that might support the district court’s finding. Id.Davis acknowledged that he had received a copy of the indictment and that he
had discussed it and the nature of its allegation with his attorney. Additionally, the
district court explained the allegations in layman’s terms (“You have to admit to me
that you participated in this conspiracy; that they were cooking and distributing
cocaine and you knew about it and participated in it in some way other than just by
being present”).
2
We cite to the current Rule 11, as amended in 2002.
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Notwithstanding the district court’s careful, straightforward explanation, Davis
contends that the district court erred in not taking additional precautions in its Rule
11(b)(1)(G) determination because of Davis’s now-claimed mental retardation. No
allegation of reduced mental abilities was raised in the district court, however, and
there are no facts in the record that indicate that Davis lacked the mental capacity to
understand the nature of the charge against him.
Next, Davis contends that the district court failed sufficiently to inquire into
the factual basis for the plea. This requirement of Rule 11(b)(3) is met where “the
transcript describes the acts to which the defendant pleaded guilty.” Marks, 38 F.3d
at 1012. Where conspiracy is the crime alleged, it is sufficient for the transcript to
demonstrate “a tacit agreement ... proven wholly by circumstantial evidence or by
inferences from the parties’ actions.” Id. at 1013 (quoting United States v. Casas, 999
F.2d 1225, 1229 (8th Cir. 1993)). A conspiracy is generally “distinguished by
cooperative relationships between parties that facilitate achievement of the goal.” Id.(quoting United States v. Townsend, 924 F.2d 1385 (7th Cir. 1991)).
Here, transcripts of the plea hearings support the district court’s finding that
Davis was a member of the conspiracy alleged in the indictment. Davis admitted that
he packaged a substance, that he knew the substance was crack cocaine, and that his
co-conspirators intended to sell it. These facts illustrate cooperation that “faciltate[d]
achievement” of the goals of the conspiracy, Marks, 38 F.3d at 1013, and thus satisfy
the requirements of Rule 11(b)(3).
Davis’s final Rule 11 argument is that the district court improperly participated
in plea discussions. The record, however, belies this contention. The district court
held two hearings involving Davis’s plea. The first ended with the district court’s
refusal to accept Davis’s plea because the record lacked a sufficient factual basis for
it. After adducing additional facts at the second hearing, the district court accepted
Davis’s plea. The hearings occurred only after discussions between the government
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and Davis had ended and the district court had been informed that Davis was prepared
to enter a plea. Rather than participating in plea discussions, then, the district court
simply held a required hearing and fulfilled its obligations under Rule 11(b).
II.
In his second argument, Davis contends that the government breached its
obligation under the plea agreement to move for reduction of sentence and asks that
we remand and order an evidentiary hearing on the issue. He maintains that he has
substantially assisted the government in the prosecution of other crimes.
The government agreed to make a Fed. R. Crim. P. 35 “substantial assistance”
motion if, in the exercise of its discretion, it determined that Davis’s cooperation
warranted it. Both the government and the district court made clear to Davis that the
government retained discretion over the Rule 35 motion. The government contends
that Davis’s assistance has not been substantial and has not enabled the government
to solve other crimes.
We have held that “[w]hen the government expressly reserves discretion, we
will perform only a limited review of the decision not to file a motion for downward
departure for substantial assistance.” United States v. Hardy, 325 F.3d 994, 996 (8th
Cir. 2003) (quoting United States v. Amezcua, 276 F.3d 445, 447 (8th Cir.2002)).
The defendant must make a “substantial threshold showing of prosecutorial
discrimination, irrational conduct, or bad faith.” Id. (internal quotations omitted).
Absent this threshold showing, Davis is not entitled to a hearing. Id.Because Davis offers nothing more than the bare assertion that his cooperation
was substantial or that it aided in the prosecution of other crimes, we conclude that
he has failed to make the required threshold showing and thus is not entitled to a
hearing.
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III.
Finally, Davis argues that we should remand for resentencing because he
received ineffective assistance of counsel at the sentencing hearing. The
ineffectiveness, Davis maintains, occurred when his lawyer failed to request an
adjustment for his mitigating role in the offense. U.S.S.G. § 3B1.2.
Although an ineffective assistance of counsel claim is generally not reviewed
on direct appeal, we will consider such a claim where, as here, the record is fully
developed in the district court. United States v. Walker, 324 F.3d 1032, 1039 n.3 (8th
Cir. 2003), cert. denied, 2003 WL 21693426 (U.S. Oct. 6, 2003). The performance
of counsel is ineffective when it is deficient and results in prejudice. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Prejudice occurs where, in the absence of
counsel’s deficient performance, “the decision reached would reasonably likely have
been different.” Id. at 696.
The government argues that because Davis is not entitled to a minor or minimal
participant adjustment as a matter of law, he suffered no prejudice as a result of his
lawyer’s failure to request it. We agree. The parties stipulated that Davis was
responsible for only 50-150 grams of cocaine base, notwithstanding the fact that
171.91 grams of cocaine base and 689.1 grams of powder cocaine were recovered at
the scene of Davis’s arrest and the unobjected-to presentence report found him
equally culpable with his co-conspirators. Without the stipulation, Davis’s base
offense level would have been 34; with the stipulation, it was 32. Because Davis was
already given credit for his role in the offense in the calculation of drug quantity, it
would have been inappropriate to give him an additional reduction in base offense
level as a minor or minimal participant. United States v. Thurmon, 278 F.3d 790, 793
(8th Cir. 2002).
The judgment is affirmed.
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