United States v. Puckett

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

October 23, 2007

No. 06-10543 Charles R. Fulbruge III

Clerk

United States of America

Plaintiff - Appellee

v.

James Benjamin Puckett

Defendant - Appellant

Appeal from the United States District Court for the

Northern District of Texas

Before JONES, Chief Judge, and REAVLEY and SMITH, Circuit Judges.

EDITH H. JONES, Chief Judge:

Appellant Puckett challenges his guilty-plea conviction of and sentence for

bank robbery and the associated use of a firearm. Puckett argues that he lacked

capacity to plead guilty, that the government breached the plea agreement, that

the district court erred in calculating his offense level, and that he suffered from

ineffective assistance of counsel. We hold that plain error review governs the

contention, newly raised on appeal, that the government breached the plea

agreement. Finding no reversible error in this or Puckett’s other issues, we

affirm.

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No. 06-10543

BACKGROUND

In July 2002, James Benjamin Puckett was charged in a two-count

indictment with bank robbery and use of a firearm in the commission of a crime

of violence. Puckett pleaded guilty to both counts on September 18, 2003. As

part of the plea agreement, the government stipulated that Puckett accepted

responsibility for his crimes and thus qualified for a three-level reduction in his

offense level. The government also agreed to request a sentence at the low end

of the applicable sentencing guidelines range. Following the plea agreement, the

government filed a motion in support of the three-level reduction.

Two months after his guilty plea but before sentencing, Puckett suffered

a seizure and was diagnosed with a benign tumor on the left side of his brain.

He underwent surgery to remove it. At the request of defense counsel, the court

ordered physical and neurological evaluations to determine Puckett's mental

capacity both presently, and at the time of the offense. While the evaluations

took place, the court continued the sentencing hearing numerous times at

Puckett’s request.

Two years after pleading guilty, Puckett filed a “Claim of Ineffective

Assistance of Counsel.” He argued, inter alia, that his attorney failed to

investigate his brain disease and failed to pursue a defense based on diminished

capacity or mental defect. Later, in November 2005, Puckett filed a motion pro

se to withdraw his guilty plea. He contended that his brain tumor and bi-polar

disorder rendered him incompetent to plead guilty and unable to assist in his

own defense.

Without a hearing, the district court rejected the claim of ineffective

assistance of counsel and denied the motion to withdraw the plea. The court

found insufficient medical evidence that Puckett suffered from bi-polar disorder,

and no evidence at all that Puckett's brain tumor or bi-polar disorder had

rendered him incompetent. The court also noted that the psychological

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No. 06-10543

evaluations of Puckett were “replete” with findings of rationality, and stated that

Puckett was demonstrably competent at the time of re-arraignment. Finally, the

court concluded that Puckett had not shown his attorney’s performance was

deficient or otherwise prejudicial to Puckett's defense.

Puckett was finally sentenced. The original presentence report (PSR) from

2003 had recommended a three-level reduction in the offense level for acceptance

of responsibility. Due to the delay in sentencing, the district court ordered the

probation officer in March 2006 to interview Puckett and update the PSR.

During those interviews Puckett admitted that, while awaiting sentencing in

this case, he had helped another inmate defraud the United States Postal

Service. The probation officer detailed this subsequent criminal conduct in an

addendum to the PSR and recommended that Puckett receive no reduction for

acceptance of responsibility. The probation officer repeated this

recommendation at sentencing, and the government agreed Puckett was no

longer entitled to a reduction. The government did not mention its conflicting

stipulation under the plea agreement. Puckett argued the court could award the

reduction despite the new criminal conduct, but he did not object on the grounds

that the government had breached the plea agreement. The court declined to

reduce the offense level. It did, however, sentence Puckett at the low end of the

advisory guidelines range. Puckett’s final sentence requires 262 months’

imprisonment for bank robbery and a consecutive 84-month term on the gun

count.

Puckett raises four points of error on appeal. First, he contends that the

district court abused its discretion in denying his request to withdraw his guilty

plea. Second, he argues the government’s breach of the plea agreement renders

the agreement unenforceable. Third, Puckett claims the district court erred in

denying him a reduction for acceptance of responsibility. Finally, Puckett

renews his ineffective assistance of counsel claim.

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No. 06-10543

DISCUSSION

I. Withdrawal of the Guilty Plea

On September 18, 2003, Puckett appeared at re-arraignment and entered

a plea of guilty on both counts in the indictment. Before accepting the plea, the

district court fulfilled its Rule 11 obligations to question Puckett and ensure the

plea was both knowing and intelligent. Satisfied on these points, the court

accepted the plea. More than two years later, on November 8, 2005, Puckett

filed a motion to withdraw his guilty plea. The district court denied that motion.

We review the denial of a motion to withdraw a guilty plea for abuse of

discretion. United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003). There is

no absolute right to withdraw a guilty plea, and the defendant bears the burden

to establish a “fair and just reason” for withdrawal. Id.; United States v. Grant,

117 F.3d 788, 789 (5th Cir. 1997). In determining whether the district court

abused its discretion in denying the motion, this court reviews seven factors:

(1) whether the defendant asserted his innocence, (2) whether withdrawal would

prejudice the government, (3) whether the defendant delayed in filing the

withdrawal motion, (4) whether withdrawal would inconvenience the court,

(5) whether adequate assistance of counsel was available, (6) whether the plea

was knowing and voluntary, and (7) whether withdrawal would waste judicial

resources. Grant, 117 F.3d at 789. In applying these factors, courts are to

consider the totality of the circumstances. United States v. Carr, 740 F.2d 339,

344 (5th Cir. 1984).

In this case, the third and the sixth factors are particularly relevant. As

to the third factor, delay, over two years elapsed between the guilty plea and

Puckett’s motion to withdraw his plea, with the brain tumor removal near the

beginning of the period. In the past, we have held that a delay of only 22 days

weighed against withdrawal of a guilty plea. Carr, 740 F.2d at 345. Here,

Puckett’s delay is many, many times greater than in Carr, and he offers no

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No. 06-10543

explanation for why he did not seek withdrawal in a more timely fashion. This

factor weighs heavily against Puckett.

As to the sixth factor, Puckett fails to demonstrate that his plea was not

knowing and voluntary. At re-arraignment the district court questioned and

advised Puckett thoroughly concerning the details and consequences of his plea.

Puckett stated repeatedly that he understood the proceedings and acknowledged

his guilt. The district court’s finding that his plea was intelligent and voluntary

was well-supported by the record, and Puckett introduces no evidence to show

otherwise. He claims his tumor caused him headaches and nausea in the

months prior to his plea, but shows no proof that his mental capacity was in any

way impaired. Rather, the record indicates that the tumor was benign, that it

did not affect the existing brain tissue, and did not impair Puckett’s ability to

enter a knowing and voluntary plea.

The other factors also weigh against withdrawal. Puckett had able

assistance of counsel throughout the process, as explained in greater detail

below. Moreover, Puckett does not assert his actual innocence. He admits to

robbing the bank but believes that the brain tumor “caused him to commit the

crime in question.” This bald assertion, without more, does not justify

withdrawal. See United States v. Rojas, 898 F.2d 40, 43 (5th Cir. 1990).

Additionally, allowing withdrawal of the guilty plea—after the district court

accommodated Puckett’s many requests for additional time to evaluate his

mental condition—would prejudice the government, inconvenience the court, and

waste judicial resources. We find no abuse of discretion in the district court’s

decision to deny Puckett’s withdrawal motion.

II. Breach of the Plea Agreement

A. Standard of Review

Puckett’s second argument is that the plea agreement is invalid because

the government breached it. The government concedes that it breached the plea

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No. 06-10543

agreement at sentencing by opposing any reduction for acceptance of

responsibility. Puckett failed to object to this breach, and raises the argument

for the first time on appeal. Because Puckett forfeited this error,1 both parties

agree that some sort of plain error analysis is appropriate. See United States v.

Brown, 328 F.3d 787, 790 (5th Cir. 2003); Fed. R. Crim. P. 52(b). The parties

differ, however, as to the details of that analysis. Puckett would have us apply

a rule of per se reversal any time the government breaches a plea agreement.

The government, on the other hand, argues that reversal is appropriate only if

Puckett can make the necessary showing of prejudice.

Each party cites Fifth Circuit caselaw in support of its position. Puckett

bases his per se rule in part on United States v. Goldfaden, where the panel held

that the government’s breach of a plea agreement was reversible plain error.

959 F.2d 1324, 1328 (5th Cir. 1992). Puckett also cites United States v. Valencia

for the proposition that “[t]he interest of justice and standards of good faith in

negotiating plea bargains require reversal where a plea bargain is breached.”

985 F.2d 758, 761 (5th Cir. 1993). In response, the government contends that

the breach of a plea agreement can constitute plain error, but will not always

warrant reversal. United States v. Cerverizzo, 74 F.3d 629, 633 (5th Cir. 1996).

To reverse, Puckett must establish the elements of plain error and show

prejudice before this court can correct a forfeited error. United States v.

Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc).2

1

Forfeiture is different from waiver. Waiver is the intentional relinquishment of a

known right, and extinguishes an error completely. See United States v. Olano, 507 U.S. 725,

733 (1993). In contrast, forfeiture—failure to make the timely assertion of a right—does not

eliminate the error, nor does it completely foreclose the possibility of appellate review. Id. at

733-34.

2

Calverley was abrogated in part on other grounds by Johnson v. United States,

520 U.S. 461, 468 (1994), which held that plain error need not be plain at the time of trial, so

long as it is plain by the time of appeal. Johnson does not affect the present analysis.

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No. 06-10543

Resolving the conflict in our authorities, we conclude that the correct and

governing standard is articulated in Calverley and applied in Cerverizzo. This

court’s cases that appear to establish a contrary rule have been superseded or

simply do not apply the correct standard. Because of the confusion in this area,

it is necessary to explain why we are bound by the Calverley en banc decision

despite the failure of a few intervening decisions to follow that precedent. The

key distinction is between preserved error and forfeited error.

1. Calverley

In Calverley this court took the opportunity to “revisit and clarify the

issue of plain error in criminal cases in this circuit.” 37 F.3d at 161. The court

began by emphasizing the reality of procedural default, pointing out that a court

will take notice of forfeited error only in “exceptional circumstances.” Id. at 162.

Calverley relied on the then-recent decision in United States v. Olano, where the

Supreme Court stated, “[n]o procedural principle is more familiar to this Court

than that a constitutional right . . . may be forfeited in criminal as well as civil

cases by the failure to make timely assertion . . . .” 507 U.S. 725, 731 (1993).

Based on Olano’s reasoning, Calverley clarified the Fifth Circuit’s standard for

reviewing forfeited error in a criminal case.

Under Calverley, a forfeited error is redressable only if a criminal

defendant can show reversible plain error. The first element of this showing is

error, which is defined as “deviation from a legal rule in the absence of a valid

waiver.” Calverley, 37 F.3d at 162. Second, that error must be plain. Plain

errors are “obvious,” “clear,” or “so conspicuous that the trial judge and

prosecutor were derelict in countenancing [them], even absent the defendant’s

timely assistance in detecting [them].” Id. at 162-63 (quotation marks and

citation omitted). Finally, the plain error must “affect substantial rights.” In

most cases, the “affecting of substantial rights requires that the error be

prejudicial; it must affect the outcome of the proceeding.” Id. at 164. The

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No. 06-10543

defendant bears the burden of persuasion. If the defendant cannot show a

substantial right has been compromised, no remedy is available.3

When the three elements of plain error are present, relief on appeal is

discretionary, not mandatory. A court of appeals should exercise its discretion

only when a plain error “seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.” Id. Plain error affecting substantial rights,

without more, does not warrant correction on appeal. Rather, appellate courts

“must determine whether the facts of the particular case warrant remediation.”

Id.

2. Goldfaden

Puckett does not explain how he has satisfied Calverley, arguing instead

that under United States v. Goldfaden the government’s breach of a plea

agreement is reversible without further analysis. Goldfaden, however, has been

superseded by Calverley.

In Goldfaden, the defendant argued for the first time on appeal that the

government had breached the plea agreement. 959 F.2d at 1327. The court

ostensibly reviewed this claim for plain error but did not explain the basis for its

holding. After finding that the government had breached the plea agreement,

the court concluded in the space of a sentence that “this violation is plain error,”

and remanded for resentencing. Id.4 This cursory plain error review does not

meet the Calverley or Olano requirements. After finding error, Goldfaden did

not explain why the government’s error was “plain” or “obvious.”5 Two years

3

This is the reverse of the harmless error standard, under which the government bears

the burden to show that no prejudice resulted. Id.

4

Goldfaden’s sparse reasoning by no means makes clear that it intended to establish

a per se rule of reversal when the government breaches a plea agreement.

5

Goldfaden did not articulate this second prong of the plain error test, much less

explain how it was met. The court cited only an opinion from the Third Circuit to refute the

government’s claim that it had not breached the plea agreement. Id.

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after Goldfaden, Calverley disavowed earlier circuit decisions that “fail to

articulate the requirement that the unobjected to error must be obvious.”

37 F.3d at 163-64 & n.27.

Further, Goldfaden did not address the third prong of the Calverley test.

Though the court correctly observed that a plea agreement implicates a

defendant’s constitutional rights, 959 F.2d at 1328, this is insufficient where a

defendant fails to preserve error on appeal. Olano, 507 U.S. at 731 (noting that

constitutional rights are subject to forfeiture if not timely asserted). Under

Calverley, forfeited plain error is redressable only when it “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” 37 F.3d at 164

(emphasis added). Goldfaden did not reach this question, nor did the court

explain whether the defendant was required to, or actually did, show prejudice.

See Goldfaden, 959 F.2d at 1327-28. Because Goldfaden did not adequately

consider the appellate court’s limited authority to review forfeited error, it

cannot be applied post-Calverley. The controlling standard for forfeited error in

criminal cases was articulated clearly in Calverley, and we are bound by that en

banc decision.

3. Decisions Subsequent to Calverley

Several Fifth Circuit decisions have recognized that the Calverley

standard applies to forfeited objections to a breach of a plea agreement.6 Notably,

in United States v. Cerverizzo, the court applied Calverley and affirmed that

under the plain error test a defendant claiming a breach of a plea agreement

must show prejudice resulting from the error. 74 F.3d 629, 633 (5th Cir. 1996).

6

See, e.g., United States v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001) (though the breach

of a plea agreement “can constitute plain error,” under Olano a forfeited error will not warrant

reversal unless it “seriously affects” the fairness, etc. of judicial proceedings); United States v.

Branam, 231 F.3d 931, 933 (5th Cir. 2000) (same) (citing Calverley, 37 F.3d at 162-64, and

United States v. Wilder, 15 F.3d 1292, 1301 (5th Cir. 1994)).

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A handful of this court’s cases, unfortunately, are inconsistent with

Calverley and call for per se reversal any time the government breaches a plea

agreement. These opinions do not properly account for the distinction between

preserved and forfeited error.

The root of the confusion is United States v. Valencia, a case that Puckett

relies on. 985 F.2d 758 (5th Cir. 1993). In Valencia the government breached

a plea agreement at sentencing, and the defendant preserved his objection. Id.

at 760. On appeal the panel applied a per se rule of reversal, stating that “[t]he

interest of justice and standards of good faith in negotiating plea bargains

require reversal where a plea bargain is breached.” Id. at 761. That rule,

articulated in a case where the defendant preserved the error, is inapplicable

here, where Puckett forfeited the error. Puckett’s reliance on Valencia is thus

misguided.

Other decisions have erroneously relied on Valencia in situations where

a defendant forfeited his objection. In United States v. Munoz, 408 F.3d 222 (5th

Cir. 2005), the defendant argued for the first time on appeal that the

government had breached the plea agreement. Id. at 226. Although Munoz

claimed to be reviewing for plain error, it did not conduct the appropriate

analysis. Munoz did not require the defendant to show the elements of plain

error and prejudice as required by Calverley and Cerverizzo. Instead, the court,

citing Valencia, applied a rule of per se reversal. Id. at 226 & n.26. Munoz is not

alone in failing to draw the distinction between preserved and forfeited error and

in incorrectly applying Valencia rather than Calverley and Cerverizzo.7

7

See United States v. Keresztury, 293 F.3d 750, 754-55 (5th Cir. 2002) (applying

Valencia and failing to acknowledge Calverley where defendant apparently forfeited his

objection); United States v. Saling, 205 F.3d 764, 766-67 (5th Cir. 2000) (summarily reversing

based on Valencia, without specifying whether defendant had preserved his objection).

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No. 06-10543

In sum, decisions that incorrectly relied on Valencia without considering

the ramifications of procedural default are not controlling. The correct rule,

correctly applied, is found in Calverley and Cerverizzo, and we are bound by that

rule where no objection was lodged in the district court. See United States v.

Molina, 469 F.3d 408, 416 (5th Cir. 2006).

B. Analysis

Accordingly, we review Puckett’s forfeited objection under the plain error

standard set forth in Calverley and Cerverizzo. The first two prongs of the test

are readily satisfied. There was error, as the government concedes that its

objection at sentencing to the reduction for acceptance of responsibility

“contradicted the terms of the plea agreement.” Moreover, the error was

obvious. Valencia, 985 F.2d at 761.

Concerning the third prong, whether this error affected a substantial

right, Puckett has not carried his burden of showing prejudice. Cerverizzo,

74 F.3d at 633. It is clear that the court denied Puckett a reduction because he

admitted he committed another crime while in custody. When Puckett asked the

court nonetheless to find that he had accepted responsibility, the district court

replied it was “so rare to be unknown” that a defendant with subsequent

criminal activity would receive such a reduction. Puckett has made no showing

that, absent the government’s recommendation, the district court would have

disregarded his criminal conduct and granted the reduction for acceptance of

responsibility. The record indicates exactly the opposite. Absent proof of

prejudice, Puckett cannot establish plain error and is not entitled to relief on a

forfeited objection.

By adhering to plain error review, we do not disagree with Valencia’s

observation that the government should not be permitted to “make a plea

bargain attractive to a defendant, subsequently violate the agreement[,] and

then argue harmless error, thereby defrauding the defendant.” 985 F.2d at 761.

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Criminal defendants should be, and are, protected against such abuse: in every

case, a defendant may object at sentencing if the government is violating a plea

agreement. Error thus preserved is entitled to review under the Valencia

standard. But when the defendant fails to object at sentencing, a different

rubric applies. In Olano the Supreme Court emphasized that courts of appeals

have only “circumscribed” authority to reach forfeited error. 507 U.S. at 731.

A defendant who fails to object at sentencing may still obtain relief on appeal,

but his burden is much greater. Here, Puckett fails to carry that burden, and we

find no plain error warranting reversal.

III. Evidence of Subsequent Crimes

Puckett’s third contention is that the district court erred when it found he

had not accepted responsibility because of his subsequent criminal conduct.

“Whether a defendant has accepted responsibility for a crime is a factual

question and the standard of review is even more deferential than clear error.”

United States v. Spires, 79 F.3d 464, 467 (5th Cir. 1996). Where a defendant has

failed to withdraw from criminal conduct, the sentencing court may deny a

reduction for acceptance of responsibility. U.S. Sentencing Guidelines Manual

§ 3E1.1 cmt. n.1(b); United States v. Franks, 46 F.3d 402, 406 (5th Cir. 1995).

As detailed in the addendum to the PSR, Puckett admitted to a probation

officer that he helped another inmate defraud the U.S. Postal Service while this

prosecution was pending. Puckett now argues his participation in criminal

activity was not proved beyond a reasonable doubt and was evidenced only by

hearsay. This objection fails for several reasons. First, the district court’s

factual determinations at sentencing are subject only to a preponderance of the

evidence standard, not proof beyond a reasonable doubt. United States v.

Partida, 385 F.3d 546, 565 (5th Cir. 2004). Second, Puckett’s statements to the

probation officer are not hearsay. Third, the sentencing judge is entitled to

consider any relevant evidence, including uncorroborated hearsay, if the

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No. 06-10543

information has “sufficient indicia of reliability to support its probable accuracy.”

United States v. Slaughter, 238 F.3d 580, 585 (5th Cir. 2001) (internal quotations

omitted). At sentencing Puckett produced no evidence to rebut the facts in the

PSR; he did not deny his involvement in the crime or his confession to the

probation officer; and he did not show that the probation officer’s statements

were “materially untrue or unreliable.” See Slaughter, 238 F.3d at 585. The

court did not err on this point.

IV. Ineffective Assistance of Counsel

Finally, Puckett complains that the district court denied his claim for

ineffective assistance of counsel without a hearing. A claim of ineffective

assistance of counsel is reviewable on direct appeal only when it was raised

before the district court and the record provides sufficient details for review.

United States v. Bounds, 943 F.2d 541, 544 (5th Cir. 1991). Puckett raised this

claim below, and the district court addressed it on the merits. The record is

adequately developed to permit review on direct appeal.

We review a district court’s denial of hearing on a claim of ineffective

assistance of counsel for abuse of discretion. United States v. Demik, 489 F.3d

644, 646 (5th Cir. 2007), cert. denied, 2007 WL 2982440 (U.S. Oct. 15, 2007) (No.

07-6487). Puckett’s ineffective assistance claim itself presents a mixed question

of law and fact; we review findings of fact for clear error and conclusions of law

de novo. United States v. Fuchs, 467 F.3d 889, 910 (5th Cir.), cert. denied, 127

S. Ct. 1502 (2006). To establish ineffective assistance, Puckett must

demonstrate that his attorney’s performance fell below an objective standard of

reasonableness, and that Puckett was prejudiced as a result. United States v.

Willis, 273 F.3d 592, 598 (5th Cir. 2001). In evaluating counsel’s performance,

the court “must indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.” Id. (quoting Strickland

v. Washington, 466 U.S. 668, 689 (1984)).

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Under these standards, we find no reversible error in the district court’s

denial of Puckett’s ineffective assistance of counsel claim. Puckett argued that

his attorney failed to pursue possible defenses based on diminished capacity or

mental defect. The record does not support this claim. Puckett’s attorney filed

numerous requests with the district court for neurological evaluations,

transportation to those evaluations, and delays in sentencing so that

examination results could be gathered and reviewed. The district court granted

these requests, and sentencing was postponed almost two years beyond the date

Puckett’s brain tumor was removed. Ultimately, these examinations failed to

produce evidence that would support a diminished capacity defense. Puckett has

not identified any legitimate argument, legal or factual, that his attorney failed

to pursue.

For similar reasons Puckett fails to show prejudice. He has not directed

this court to any evidence that would support either a defense to the

government’s case or a finding of impaired capacity at the time of his guilty plea.

Rather, the numerous reports on record confirm Puckett’s mental competence.

Doctor Gregory Smith found Puckett to have “excellent neurological functions,”

and expected him to “do quite well postoperatively with no expected residual

neurologic defects.” Likewise, the court-appointed psychologist, Randall Rattan,

concluded Puckett had no mental defect that either would have rendered him

unable to appreciate the wrongfulness of his offense, or might impair his ability

to assist in his own defense. Doctor Susan Franks, who conducted a

neuropsychological evaluation of Puckett, found no serious cognitive impairment

either at the time of offense or prior to sentencing. These findings are consistent

with the transcript of Puckett’s re-arraignment, which shows that he was well

aware of the nature of his offense and the consequences of his plea. Puckett

makes no showing to support a finding of prejudice, and this in itself is adequate

grounds for affirming the district court’s decision. See Armstead v. Scott, 37 F.3d

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202, 210 (5th Cir. 1994) (“A court need not address both components of the

[ineffective assistance] inquiry if the defendant makes an insufficient showing

on one.”).

For the above reasons, the district court did not abuse its discretion in

denying Puckett’s ineffective assistance claim without a hearing. Nor is there

any merit to Puckett’s claim on appeal that his attorney was derelict for not

hiring another expert to rebut Doctor Franks’s report. Puckett has given the

court no reason to believe that “just one more” evaluation would be any different

from the numerous reports already on record, all of which conclude Puckett was

not suffering from diminished mental capacity.

CONCLUSION

For these reasons, the sentence and conviction of James Benjamin Puckett

are AFFIRMED.

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