United States v. Alston

1

United States of America, Plaintiff-Appellee, v. Larry Moore Alston, Jr. Defendant-Appellant.

No. 21-30090

United States Court of Appeals, Fifth Circuit

June 6, 2023

Appeal from the United States District Court for the Western District of Louisiana USDC No. 1:19-CV-650

Before RICHMAN, Chief Judge, and STEWART and DOUGLAS, Circuit Judges.

PER CURIAM: ^[*]

Larry Moore Alston, Jr. filed this appeal challenging the district court's denial of his 28 U.S.C. § 2255 motion alleging that he was denied effective assistance of counsel in submitting his guilty plea. Because Alston has failed to show that his counsel's performance was deficient or prejudicial under Strickland v. Washington, 466 U.S 668 (1984), we AFFIRM.

I. Factual &Procedural Background

Alston federal prisoner # 19658-035, and a dozen co-defendants were indicted for conspiring to distribute and to possess a mixture and substance containing a detectable amount of cocaine and a mixture and substance containing a detectable amount of methamphetamine.^[1] Relevant to this appeal, Alston pleaded guilty with the benefit of a plea agreement to the conspiracy count involving only the methamphetamine mixture.

At Alston's rearraignment hearing, a state trooper testified that he believed that the plea agreement offered to one of the co-defendants involved between 1.5 and 5 kilograms of a mixture containing methamphetamine.^[2]Subsequent to the rearraignment hearing, however, the probation officer who prepared Alston's presentence report ("PSR") explained that "[t]he U.S. Attorney's Office and the Federal Bureau of Investigation indicated that the methamphetamine associated with . . . this case was of a high purity level and should be considered 'actual' methamphetamine for guideline purposes." The probation officer continued that, according to laboratory reports, the methamphetamine involved in the conspiracy ranged in purity "from 99.6% (+/- 3.7%) to 92.3% (+/- 3.6%)." Consequently, applying the 2016 edition of the Guidelines the probation officer determined that Alston was accountable for 49 ounces of actual methamphetamine, 10 ounces of heroin, and 24 ounces of cocaine, which, taken together, were equivalent to 28,202.58 kilograms of marijuana. That drug quantity resulted in a base offense level of 34. Alston received no adjustment for acceptance of responsibility due to a post-guilty-plea arrest. Thus, his total offense level remained at 34. He received a total of 13 criminal history points which placed him in criminal history category VI.

Defense counsel submitted a sentencing memorandum, disputing the finding that Alston's offense involved actual methamphetamine instead of a methamphetamine mixture. He argued that the parties understood that Alston was pleading guilty to a conspiracy involving a "mixture" of methamphetamine rather than "actual" methamphetamine based on the state trooper's testimony at rearraignment. He explained that the laboratory reports cited in the PSR had not been presented or referred to at rearraignment and noted that Alston "would not have accepted, and [he] would not have advised [Alston] to enter into a plea agreement for actual methamphetamine." He also submitted written objections to the PSR raising a substantially similar argument.

At sentencing, defense counsel re-urged his objection and the district court overruled it, emphasizing that: (1) Alston denied at rearraignment that there was any side agreement apart from the plea agreement, (2) there was nothing in the record suggesting that there was an agreement as to the purity of the drugs, and (3) Alston had been sufficiently admonished and acknowledged at rearraignment that the ultimate sentence was up to the court.

The parties ultimately agreed that Alston was entitled to a two-point reduction in his criminal history score, but the district court mistakenly reduced his offense level, rather than his criminal history score, resulting in a total offense level of 32 and a criminal history category of VI, yielding a guidelines imprisonment range of 210 to 240 months. The district court then sentenced him within guidelines to 225 months of imprisonment, to be followed by five years of supervised release.

Alston appealed his sentence, arguing that his offense level should have been calculated based on a finding that the offense involved a mixture containing methamphetamine rather than actual methamphetamine. United States v. Alston, 720 Fed.Appx. 219, 219 (5th Cir. 2018) (per curiam) (unpublished). A panel of this court rejected his argument and affirmed his sentence. Id. at 219-20.

Alston subsequently filed a pro se 28 U.S.C. § 2255 motion with the district court, asserting that he was denied effective assistance of counsel because in advising him to plead guilty, counsel incorrectly informed him of a guidelines range that was based on a mixture containing methamphetamine instead of actual methamphetamine. According to Alston, counsel told him that if he accepted the Government's plea offer, he would be facing a guidelines range of 120 to 150 months' imprisonment. He claimed that but for counsel's incorrect estimation of his guidelines range, he would not have pleaded guilty and would have insisted on going to trial.

The magistrate judge ("MJ") issued a report recommending that the § 2255 motion be denied. Relying primarily on Thomas v. United States, 27 F.3d 321, 326 (8th Cir. 1994) and various district court cases, the MJ concluded that the district court's admonishments were sufficient and that counsel's failure to advise Alston of the correct guidelines range did not establish that his performance was deficient.

Through newly retained counsel, Alston objected to the MJ's report, attacking its reliance on Thomas and the district court cases, arguing that they were not controlling and were distinguishable. The district court determined that the MJ's findings and recommendations were correct and denied the § 2255 motion. It then denied Alston a certificate of appealability ("COA"). With the assistance of counsel, Alston moved this court for a COA. A judge of this court subsequently granted a COA with respect to his ineffective assistance of counsel claim.

II. Standard of Review

In an appeal from the denial of a § 2255 motion, this court reviews the district court's legal conclusions de novo and its factual findings for clear error. United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008). Claims of ineffective assistance of counsel are reviewed de novo. See United States v. Scott, 11 F.4th 364, 368 (5th Cir. 2021), cert. denied, 142 S.Ct. 827 (2022).

III. Discussion

"[A] prisoner who claims that his sentence violates federal law 'may move the court which imposed the sentence to vacate, set aside[,] or correct the sentence'" under § 2255. United States v. Kelley, 40 F.4th 250, 251 (5th Cir. 2022) (citing 28 U.S.C. § 2255(a)). "Relief under [§ 2255] is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (per curiam) (citation omitted). A federal prisoner may move to vacate, set aside, or correct his sentence on four distinct grounds: "(1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is 'otherwise subject to collateral attack.'" United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996) (citations omitted). "The scope of relief under § 2255 is consistent with that of the writ of habeas corpus." Id. (citation omitted). "[A] § 2255 motion is the preferred method for raising a claim of ineffective assistance of counsel." United States v. Green, 47 F.4th 279, 296 (5th Cir. 2022) (citations omitted).

A defendant has a constitutional right to "be advised and understand the consequences of a guilty plea." United States v. Rivera, 898 F.2d 442, 447 (5th Cir. 1990). "The consequences of a guilty plea, with respect to sentencing, mean only that the defendant must know the maximum prison term and fine for the offense charged." Id. In other words, as long as a defendant understands "the length of time he might possibly receive, he was fully aware of his plea's consequences." Id. (citations omitted).

To establish ineffective assistance of counsel, a defendant must demonstrate that his attorney's performance was deficient, and that this substandard performance prejudiced his defense. Strickland, 466 U.S. at 687. A failure to establish either deficient performance or prejudice defeats an ineffective assistance claim. Id. at 697. A claim that a plea was involuntary due to counsel's deficient performance encompasses the issue of whether counsel rendered ineffective assistance under Strickland. See Hill v. Lockhart, 474 U.S 52, 58 (1985). "[A] guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not a reasonably competent attorney and the advice was not within the range of competence demanded of attorneys in criminal cases." Strickland, 466 U.S. at 687 (internal quotation marks and citation omitted). A defendant can show Strickland prejudice by establishing "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. "[I]t is not enough, under Strickland, 'that the errors had some conceivable effect on the outcome of the proceeding.'" Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994) (quoting Strickland, 466 U.S. at 693). "[T]o obtain relief on...