The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 24, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-10085
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CURTIS DALE DAUGHERTY,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Although, in this ineffective assistance of counsel claim
brought under 28 U.S.C. § 2255, the defendant-appellant raises an
issue of first impression in this Circuit -- whether, when a
sentence has been vacated because of a defect, the government may
present new evidence at resentencing to cure that defect and then
reimpose the earlier sentence -- the final resolution of this
specific question is not required because of the specific language
of the plea agreement in this case. Consequently for the reasons
stated below, we hold that the district court did not abuse its
discretion in allowing the government to introduce evidence to
support the valid plea agreement at resentencing.
I
On June 6, 2002 Daugherty pleaded guilty to one count of being
a convicted felon in possession of a firearm. In the plea
agreement the defendant and the government agreed that “the
appropriate disposition of this case is the specific sentence of
fifteen (15) years imprisonment” under the applicable statutes --
18 U.S.C. § 922(g)(1), making it unlawful for a felon to have a
firearm, and 18 U.S.C. § 924(e), the Armed Career Criminal
Enhancement.1 The validity, and hence the enforceability, of this
plea agreement has not been contested by the defendant or the
government.
Daugherty’s presentence report (PSR) noted four prior
convictions as violent felonies for purposes of enhancement: 1)
murder, 2) burglary of a habitation, 3) burglary of a building, and
4) unauthorized use of a motor vehicle. However, in the factual
resume submitted to the district court, the government elected to
prove only three prior convictions: 1) murder, 2) burglary of a
habitation, and 3) unauthorized use of a motor vehicle. In
accordance with the plea agreement, the district court sentenced
Daugherty to fifteen years imprisonment.
1
Specifically 18 U.S.C. § 924(e) provides in relevant part:
(e)(1) In the case of a person who violates
section 922(g) of this title and has three
previous convictions . . . for a violent
felony or a serious drug offense . . . such
person shall be fined under this title and
imprisoned not less than fifteen years.
18 U.S.C. § 924(e)(1)(2005).
2
II
After Daugherty’s guilty plea, but before the imposition of
his sentence, this Court, sitting en banc, decided United States v.
Charles, 301 F.3d 309, 310 (5th Cir. 2002) (en banc), which held
that the unauthorized use of a motor vehicle was not a “crime of
violence” under U.S.S.G. § 4B1.2(A).2 Neither Daugherty nor the
government raised Charles during the sentencing process. The stage
was thus set for this ineffective assistance of counsel claim
brought under 28 U.S.C. § 2255, for the attorney’s failure to
discover and argue Charles. The district court granted Daugherty’s
motion, vacated the sentence and ordered resentencing “subject to
[the government’s] right to argue and present proof of three prior
violent felony convictions to support an enhanced sentence under
§ 924(e).”3
2
Section 4B1.2(a) provides:
The term “crime of violence” means any offense
under federal or state law, punishable by
imprisonment for a term exceeding one year,
that –– (1) has as an element the use,
attempted use, or threatened use of physical
force against the person of another, or (2) is
burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise
involves conduct that presents a serious
potential risk of physical injury to another.
U.S. SENTENCING GUIDELINES § 4B1.2(a).
3
The government conceded at oral argument that the most
procedurally “neat” way to have handled this case would have been
to appeal the district court’s finding of ineffective assistance
and grant of § 2255 relief. Under Strickland v. Washington, to
demonstrate ineffective assistance of counsel a defendant must
3
At resentencing, over objection of Daugherty, the district
court admitted evidence of Daugherty’s fourth conviction and
sentenced him again to fifteen years, in accord with the plea
agreement.4 Daugherty appeals, arguing that the government waived
its opportunity to prove up his burglary of a building conviction
by not presenting the evidence at the original sentencing. He
thus argues that the district court improperly allowed the
government a “second bite at the apple” by allowing this new
evidence at resentencing. But for the valid plea agreement in
this case Daugherty’s arguments might have more merit.5
prove both that “counsel's performance was deficient,” and that
“the deficient performance prejudiced the defense . . .[i.e.,] that
counsel's errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.” 104 S.Ct. 2052,
2064 (1984). Here it seems the second prong may have been missing
-- that is to say, the defendant did not and could not prove
prejudice. Had Daugherty’s counsel performed in an “effective”
way, i.e., raised an objection to the unauthorized use of a motor
vehicle conviction for § 924(e) purposes based on Charles, the
government would have proven up the outstanding fourth prior
conviction. However, the government did not appeal the district
court’s grant of § 2255 relief and thus the issue is not properly
before this court.
4
Thus the sentence as appealed applies the enhancement of 18
U.S.C. § 924(e) relying on Daugherty’s prior convictions of 1)
murder, 2) burglary of a habitation, and 2) burglary of a building.
5
However, we note that the Seventh Circuit, facing just such
a case, rejected the arguments Daugherty presents, reasoning that
to accept that position would result in a windfall to the
defendant. The Seventh Circuit remanded for resentencing
considering all prior convictions of the defendant, giving the
following reasoning:
Had [the defendant’s] lawyer made an argument
based on [the invalidity of the prior
conviction for enhancement purposes], the
4
III
The uncontested plea agreement clearly shows that the
defendant agreed that he should be sentenced under the § 924(e)
enhancement and that “the appropriate disposition fo this case is
the specific sentence of fifteen (15) years imprisonment.” After
the Charles error was discovered the district court had before it
a valid plea agreement that provided an agreed 15-year sentence,
yet had to recognize that the 15-year sentence was no longer
supported by the requisite three crimes of violence. Thus, the
district court received evidence of the additional burglary at the
resentencing. Given the clear agreement of the parties to the 15-
year sentence, the acknowledgment in the plea agreement that §
924(e) applies, and the fact that the plea agreement itself remains
valid, we cannot find that the district court abused its discretion
in admitting this additional evidence at resentencing.6
prosecutor might well have chosen to rely on
the [other available prior] convictions.
Although we have given [the defendant] the
benefit of an argument he did not make at the
right time, we are unwilling to turn his
silence [at sentencing] into a windfall by
knocking out a conviction while forbidding the
prosecutor to establish that there were
others. [The defendant] is not entitled to do
better than he would have done had everyone
recognized [at the original sentencing] that
the [invalid] conviction must be disregarded.
Dahler v. United States, 143 F.3d 1084, 1088 (7th Cir. 1998). Thus
even were there no plea agreement in this case, the outcome might
be the same.
6
This result is further supported by the fact that the plea
5
IV
Accordingly, we affirm the district court’s decision to admit
evidence of the crime of burglary of a building at resentencing.
Thus, the judgment of the district court is
AFFIRMED.
agreement does not specify any three prior convictions upon which
the § 924(e) enhancement relies. Rather the agreement merely
acknowledges that the defendant qualifies for the enhancement.
6