Stanley Sharp v. United States ( 1996 )

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No. 93-2840
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Stanley Sharp, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
United States of America, *
* (UNPUBLISHED)
Appellee. *
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Submitted: March 15, 1995
Filed: April 11, 1996
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Before MAGILL, JOHN R. GIBSON, and BEAM, Circuit Judges.
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PER CURIAM.
Stanley Sharp appeals the district court's denial of his motion under
28 U.S.C. § 2255 to correct his 114 month sentence entered on a plea of
guilty. The essence of his claim is that he received ineffective
assistance of counsel because his attorney falsely represented to him that
an agreement had been reached limiting his sentence to five years, or that
counsel failed to inform the sentencing court of this agreement. The
district court adopting the report and recommendation of a magistrate judge
denied the motion on the basis of his answers in both a written plea
agreement and before the open court that there were no promises made to him
with respect to his sentence, that the court was not bound by any motion
filed by the government, and that he wished to plead guilty. We affirm the
judgment of the district court.
Sharp pleaded guilty to conspiracy to possess with intent to
distribute cocaine in violation of 18 U.S.C. § § 841(a)(1) and 846. Under
the plea agreement, Sharp agreed to cooperate with the government's
investigation, and in return the government agreed not to prosecute him for
any other violations of federal controlled substances law and to file a
motion with the sentencing court requesting a downward departure.
After questioning Sharp at length, the court1 determined that Sharp's
guilty plea was voluntary and that Sharp did not believe the government had
made any additional promises. The government stated that Sharp had "fully
cooperat[ed]" with the investigation, filed the motion for a downward
departure, and dismissed the remaining counts against Sharp. The court
noted that Sharp's sentencing range was 151 to 188 months; the court
departed downward four levels and sentenced Sharp to 114 months in prison.
The court also stated, however, that it did not believe Sharp's assistance
was "complete in all respects," specifically as to his suppliers, and that
the departure would have been greater with that additional information.
This court affirmed Sharp's sentence on direct appeal, holding that
it will not review the extent of a downward departure. United States v.
Sharp, 931 F.2d 1310, 1311 (8th Cir. 1991).
Sharp filed this section 2255 motion alleging ineffective assistance
of counsel because his attorney falsely represented to him that an
agreement had been reached limiting his sentence to five years, or that if
such an agreement did exist, because he failed to inform the sentencing
court of its existence. Sharp stated that if he had realized he would be
sentenced to more than five years, he "would have been in the mind to ask
for a better
1
The Honorable William G. Cambridge, Chief Judge, United
States District Court for the District of Nebraska, adopting the
report and recommendations of the Honorable David L. Piester,
United States Magistrate Judge for the District of Nebraska.
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plea agreement." The magistrate judge recommended denying the motion,
quoting at length Sharp's assertions at his plea hearing that no additional
agreements existed. The district court denied the motion, determining that
the sentence was proper because the sentencing court had given Sharp
several opportunities to bring up such an agreement and he did not do so,
and because the court had informed Sharp that it was not bound by the
government's motion for a downward departure.
Sharp asserts on appeal that the sentencing court had no authority
to determine that he did not comply with the plea agreement when the
government stipulated that he had complied, and that he should receive the
sentence that the district court would have imposed if it had found
complete assistance.
This court reviews de novo the denial of Sharp's section 2255 motion
and, as it was denied without a hearing, this court affirms only if the
record conclusively shows he is not entitled to relief. See Holloway v.
United States, 960 F.2d 1348, 1351 (8th Cir. 1992). Sharp may not
relitigate the district court's departure from the guidelines, or the
extent of the departure, as these issues were raised and ruled on direct
appeal. See Dall v. United States, 957 F.2d 571, 572 (8th Cir. 1992) (per
curiam). Sharp contests only the extent of the departure. See United
States v. Left Hand Bull, 901 F.2d 647, 650 (8th Cir. 1990) (court may not
review extent of departure).
Sharp's claim that his sentence is invalid as contradicting his plea
agreement fails. Sharp's plea agreement did not include any assurances
that he would be sentenced to five years in prison, and Sharp admitted
during lengthy questioning that neither the government nor his attorney had
made any additional promises. See United States v. Storey, 990 F.2d 1094,
1097 (8th Cir. 1993) (difficult to overcome defendant's representations
regarding plea agreement during plea-taking hearing); United States v.
Ball, 646
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F.2d 340, 340 (8th Cir. 1991) (per curiam) (district court's denial of
§ 2255 motion to correct sentences in accord with plea agreements affirmed
where movants denied existence of deals or promises of plea hearing).
Sharp's claim that his attorney was ineffective for leading him to
believe that he would receive a five year sentence also fails. The extent
of his assertion is that he would have asked for a better plea agreement
if he had known his sentence would be greater than five years, and this is
insufficient to show prejudice. See Iron Wing v. United States, 34 F.3d
662, 664-65 (8th Cir. 1994) (to show prejudice from guilty plea, defendant
must show he would not have pleaded guilty). Strickland v. Washington, 466
U.S. 668 (1984), requires not only a showing that counsel's performance was
objectively unreasonable, but that the client was prejudiced and for
failure to demonstrate prejudice his claim fails.
The judgment of the district court denying relief on Sharp's section
2255 motion is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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