United States v. Thompson ( 1998 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                    No. 97-4760
    STEPHEN C. THOMPSON,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of West Virginia, at Beckley.
    Elizabeth V. Hallanan, Senior District Judge.
    (CR-95-69)
    Submitted: February 10, 1998
    Decided: February 26, 1998
    Before MOTZ, Circuit Judge, and HALL and
    PHILLIPS, Senior Circuit Judges.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Cheryl J. Sturm, Westtown, Pennsylvania, for Appellant. Rebecca A.
    Betts, United States Attorney, Michael L. Keller, Assistant United
    States Attorney, Charleston, West Virginia, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Appellant Stephen Thompson pled guilty to distribution of cocaine
    base.1 After his direct appeal was dismissed for failure to file a timely
    notice of appeal, Thompson moved for habeas corpus relief under 
    28 U.S.C.A. § 2255
     (West 1994 & Supp. 1997) on various grounds,
    including ineffective assistance of counsel. Acting on that motion, the
    district court vacated and reinstated Thompson's sentence, thus allow-
    ing him another opportunity to perfect a direct appeal. Finding no
    error in the disposition of Thompson's § 2255 motion or the underly-
    ing criminal proceedings, we affirm.
    In May 1995, a federal grand jury indicted Thompson on numerous
    drug charges.2 After initially pleading not guilty, Thompson entered
    into a plea agreement with the government. He pled guilty in Septem-
    ber to one count of distribution of cocaine base, 3 and was sentenced
    to 210 months imprisonment. Thompson's notice of direct appeal was
    untimely filed, and this court granted the government's motion to dis-
    miss the appeal as untimely.4
    In April 1997, Thompson moved for habeas corpus relief under
    § 2255, claiming among other things that his counsel had been inef-
    fective by failing to file a timely notice of appeal. The district court,
    following the procedure endorsed by this circuit in United States v.
    Peak, 
    992 F.2d 39
     (4th Cir. 1993), granted Thompson relief by vacat-
    ing and immediately reimposing his judgment of conviction, thus
    allowing him another opportunity to appeal, but denied his other
    claims. Thompson then timely appealed from the judgment in his
    habeas action and from the newly reinstated judgment in the underly-
    ing criminal proceedings.
    _________________________________________________________________
    1 See 
    21 U.S.C. § 841
    (a)(1) (1994).
    2 See 
    21 U.S.C. §§ 841
    (a)(1), 846 (1994).
    3 
    Id.
    4 See United States v. Thompson , No. 96-4180 (4th Cir. July 12, 1991)
    (unpublished).
    2
    First, Thompson contends that the district court erred by merely
    reimposing his original sentence in order to restore his appellate rights
    instead of ordering a new presentence report and conducting a new
    sentencing hearing. This claim is without merit because the district
    court's action was totally consistent with this court's decision in Peak.5
    Second, Thompson asserts that the district court abused its discre-
    tion by failing to conduct an evidentiary hearing on his claims that
    counsel was ineffective at sentencing and that the government
    breached the plea agreement. Our review of the record discloses the
    district court did not abuse its discretion by failing to hold an eviden-
    tiary hearing.6 The record demonstrates that Thompson understood his
    rights and consented to the withdrawal of objections to the presen-
    tence report. Further, bald allegations of a verbal promise by the gov-
    ernment are insufficient to mandate a hearing.
    Third, Thompson claims that the plea agreement's use of "cocaine
    base" instead of "cocaine base aka `crack,'" as in the indictment, led
    him to believe that he was pleading guilty to a lessor offense than was
    charged in the indictment. Thompson's claim is without merit. Con-
    trary to Thompson's assertions, the sentencing guidelines state that
    cocaine base means crack,7 and the clear precedent of this circuit is
    that the terms cocaine base and crack are synonymous.8 Moreover,
    Thompson's sentence of 210 months does not exceed the twenty-year
    maximum sentence contained in the plea agreement; thus, Thompson
    received the benefit of his bargain.
    Finally, Thompson contends that his plea agreement was premised
    upon a verbal promise by the government that it would move under
    FED. R. CRIM. P. 35 for a reduction in sentence. Thompson's claim is
    without merit because the government only offered the possibility of
    moving for a reduction in sentence. Because the government retained
    discretion to file a Rule 35 motion and Thompson failed to allege an
    _________________________________________________________________
    5 See Peak, 
    992 F.2d at 42
    .
    6 See Raines v. United States, 
    423 F.2d 526
    , 529-30 (4th Cir. 1970).
    7 See U.S. SENTENCING GUIDELINES MANUAL§ 2D1.1(c), note (D) (1997).
    8 See United States v. Fisher, 
    58 F.3d 96
    , 98-99 (4th Cir. 1995).
    3
    unconstitutional motive for the failure to file, Thompson's claim is
    without merit.9
    For the reasons stated herein, we affirm the judgments of the dis-
    trict court in Thompson's habeas action and in the underlying crimi-
    nal action proceedings. We dispense with oral argument because the
    facts and legal contentions are adequately presented in the materials
    before the Court and argument would not aid the decisional process.
    AFFIRMED
    _________________________________________________________________
    9 See United States v. Wallace, 
    22 F.3d 84
    , 87 (4th Cir. 1994).
    4