United States v. Dewey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-30450

Plaintiff-Appellee, D.C. No.

v.  4:08-cr-00076-

JOHN P. DEWEY, SEH-1

Defendant-Appellant.

 OPINION

Appeal from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Argued and Submitted

January 13, 2010—Seattle, Washington

Filed March 26, 2010

Before: Andrew J. Kleinfeld and Richard C. Tallman,

Circuit Judges, and Benjamin Hale Settle,* District Judge.

Opinion by Judge Settle

*The Honorable Benjamin Hale Settle, United States District Judge for

the Western District of Washington, sitting by designation.

4875

4878 UNITED STATES v. DEWEY

COUNSEL

Mark D. Meyer, Great Falls, Montana, for the defendant-

appellant.

Joseph E. Thaggard, United States Attorney’s Office, Helena,

Montana; Leif M. Johnson (argued), United States Attorney’s

Office, Billings, Montana, for the plaintiff-appellee.

OPINION

SETTLE, District Judge:

This matter involves challenges to a career offender sen-

tence enhancement. As part of a plea agreement, Defendant-

Appellant John P. Dewey (“Dewey”) pleaded guilty to partici-

pating in a conspiracy to distribute methamphetamine. The

district court sentenced Dewey using the Sentencing Guide-

lines and applied the career offender enhancement based on

Dewey’s criminal history. Dewey timely appealed. Dewey

contends (1) his trial counsel was ineffective; (2) the trial

court erred in sentencing him as a career offender; (3) the trial

UNITED STATES v. DEWEY 4879

court imposed an unreasonable sentence; and (4) the trial

court erred in not treating a letter personally written by

Dewey to the district court as a motion for withdrawal of

guilty plea. We review the matter pursuant to our authority

under 28 U.S.C. § 1291. We decline to review Dewey’s inef-

fective assistance claim because, without a fully developed

record, it is not properly before the Court on direct appeal,

and we affirm the trial court’s other rulings on these issues.

I. FACTS AND PROCEDURAL HISTORY

Dewey is from Great Falls, Montana. In his adult life,

Dewey committed several crimes. The following summarizes

Dewey’s criminal history:

1. 1988, misdemeanor negligent endangerment

2. 1990, criminal sale of dangerous drugs (two sep-

arate felony offenses)

3. 1990, forgery (felony)

4. 1995, assault

5. 1996, assault, unlawful restraint, and criminal

mischief

6. 2003, misdemeanor theft

7. 2003, operating a clandestine laboratory (felony)

In 1990, Dewey pleaded guilty to two counts of the crimi-

nal sale of dangerous drugs. For each count, he was sentenced

to fifteen years in prison, with five years of that sentence sus-

pended. The sentences were set to run concurrently. In 1996,

while on parole from those offenses, Dewey was convicted of

misdemeanor assault. As a result of the assault conviction, the

court revoked the five years that had been suspended from his

4880 UNITED STATES v. DEWEY

1990 sentence. Thus, he was re-incarcerated in 1996 for his

1990 felony drug conviction. While on parole, Dewey com-

mitted the instant offense.

Beginning in January 2008, Dewey made several sales of

methamphetamine to a confidential informant. On June 4,

2008, the Grand Jury for the District of Montana indicted

Dewey on one count for conspiring with his live-in girlfriend,

Sharon Olson (“Olson”), to distribute methamphetamine,

which violated 21 U.S.C. §§ 841(a)(1) and 846. On June 12,

2008, Dewey entered a plea of not guilty to this crime.

On August 1, 2008, Plaintiff-Appellee (the “Government”)

filed an Information which provided Dewey with notice of its

intent to seek a career offender sentence enhancement based

on Dewey’s prior felony drug trafficking offenses.

On August 7, 2008, Dewey entered into a plea agreement

with the Government pursuant to Federal Rule of Criminal

Procedure 11(c)(1)(B). The plea agreement expressly pro-

vided that (1) the court is not obligated to accept or follow the

recommendations made by the Government, and that (2) the

Defendant understands the charge to which he will plead

guilty carries a maximum penalty of thirty years imprison-

ment and a $2,000,000 fine, pursuant to 21 U.S.C.

§§ 841(b)(1)(C) and 851.

On August 13, 2008, Dewey appeared in district court for

a change of plea hearing. The court first determined that

Dewey was competent to proceed with the hearing. Next, the

court engaged Dewey in a colloquy that thoroughly detailed

the change of plea proceeding, how Dewey’s sentence would

be determined, and the rights to which Dewey was entitled as

part of the process. Dewey confirmed that he understood the

indictment, the charge against him, and the potential career

offender sentence he faced for his crime. The court informed

Dewey that it would calculate an applicable Guideline sen-

tence range for the offense of conviction, that this Guideline

UNITED STATES v. DEWEY 4881

range was not binding on the court, and that it served only as

a starting point for consideration of an appropriate sentence.

The court further explained to Dewey that, in determining

what sentence to impose, it would consider a host of other

factors that are spelled out in 18 U.S.C. § 3553(a). Dewey

confirmed he understood how sentencing would work in his

case. The court also informed Dewey that should it decide to

depart from the recommended sentence, such a decision could

not be used to form the basis for seeking to withdraw a guilty

plea. Dewey affirmed that he was clear about this point.

At the close of the change of plea hearing, Dewey entered

a plea of guilty. The court accepted Dewey’s plea, adjudged

him guilty, and informed him that a presentence report would

be provided before sentencing.

The Presentence Report (“PSR”) included Dewey’s written

admission of guilt to the conspiracy charge and determined

that Dewey had a base offense level of 20, since he was

responsible for distributing at least 20—but less than 30—

grams of methamphetamine. However, because of Dewey’s

prior felony convictions, his offense level was increased to

34. In exchange for Dewey’s guilty plea, the Government rec-

ommended a three-level downward adjustment for his accep-

tance of responsibility, resulting in an offense level of 31. The

PSR concluded that Dewey qualified as a career offender. The

probation officer then determined that the Guidelines pro-

jected a sentence of imprisonment with a range of 188 to 235

months.

Dewey objected to being classified as a career offender,

arguing that his 1990 drug trafficking convictions had

occurred more than fifteen years before the current charge and

could not, therefore, be used to calculate his offender score.

The probation officer rejected this argument noting that

Dewey’s suspended sentence was revoked and as part of that

revocation he was sentenced to five years custody, which

occurred well within the fifteen-year limit. As a result, the

4882 UNITED STATES v. DEWEY

probation officer concluded that this fact triggered the career

offender enhancement.

On October 27, 2008, against the advice of his lawyer,

Dewey personally wrote a letter to the district court stating

that he would never have signed the plea agreement if he

knew he would be sentenced as a career offender. He claimed

that his attorney, Mr. Obie, assured him that his sentencing

range would not exceed five years. He also complained that

Mr. Obie had done nothing to prevent him from being desig-

nated a career offender. In his letter, Dewey asked the court

to set aside or vacate the sentencing, or, at the very least, to

appoint him new counsel willing to challenge the issue.1 Fol-

lowing this letter, Dewey’s attorney moved to withdraw as

Dewey’s counsel on the basis that they had “irreconcilable

differences.”

The district court held an ex parte hearing on the motion to

withdraw as counsel. The court expressly stated that a motion

to withdraw Dewey’s guilty plea was not before the court.

Ultimately, the court determined Dewey was simply dissatis-

fied with being classified as a career offender and denied Mr.

Obie’s motion to withdraw. Mr. Obie remained Dewey’s

counsel throughout the proceedings below. At the close of the

ex parte hearing, the court urged Dewey and Mr. Obie to fully

discuss Dewey’s case and to be prepared for sentencing as

scheduled.

On November 17, 2008, Dewey’s sentencing hearing was

held, and the court classified Dewey as a career offender. The

court concluded that Dewey’s prior felony drug convictions

qualified as predicate offenses for classifying Dewey as a

career offender and calculated the advisory Sentencing Guide-

line at 188 to 235 months.

1

Although Dewey’s October 27, 2008, letter requested the court to “set

aside or vacate the sentencing,” the court did not sentence him until

November 17, 2008. We interpret Dewey’s letter to be a request to stop

the sentencing process pending his request for new counsel.

UNITED STATES v. DEWEY 4883

Before sentencing Dewey, the district court informed him

that it determined Dewey’s sentence after considering the

PSR, Dewey’s statements, his counsel’s statements, witness

statements, opposing counsel’s statements, the full record, and

the totality of the circumstances. The court acknowledged it

was obligated to impose a sentence that is not greater than

necessary to meet the sentencing law and to meet the goals of

the sentencing program, and stated it had considered the fac-

tors found in 18 U.S.C. § 3553(a). Ultimately, the court sen-

tenced Dewey to 224 months imprisonment and 6 years

supervised release. Dewey timely appealed.

II. DISCUSSION

A. Ineffective Assistance of Counsel

We generally do not review challenges to the effectiveness

of defense counsel on direct appeal. United States v.

Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005); United States

v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003). On the pres-

ent record we are unable to determine with reasonable cer-

tainty “what counsel did, why it was done, and what, if any,

prejudice resulted.” United States v. Laughlin, 933 F.2d 786,

788-89 (9th Cir. 1991). Thus, Dewey’s ineffective assistance

of counsel claim is not properly before us. United States v.

Anderson, 850 F.2d 563, 565 n.1 (9th Cir. 1988). However,

Dewey is not foreclosed from bringing this claim in a habeas

proceeding pursuant to 28 U.S.C. § 2255.

B. Career Offender Status

Dewey next argues that the district court erred in sentenc-

ing him as a career offender. We review the district court’s

factual findings during sentencing for clear error and its inter-

pretation of the Sentencing Guidelines de novo. United States

v. Alexander, 287 F.3d 811, 818 (9th Cir. 2002). A district

court’s application of the Sentencing Guidelines to the facts

of a case are reviewed for abuse of discretion. Id.

4884 UNITED STATES v. DEWEY

[1] A district court may sentence a defendant as a career

offender when:

(1) the defendant was at least eighteen years old

at the time the defendant committed the instant

offense of conviction; (2) the instant offense of con-

viction is a felony that is either a crime of violence

or a controlled substance offense; and (3) the defen-

dant has at least two prior felony convictions of

either a crime of violence or a controlled substance

offense.

U.S.S.G. § 4B1.1. Dewey concedes that the first two elements

are satisfied in his case and that his 2003 felony conviction

for operating a clandestine laboratory should count as one of

the two required predicate offenses. However, Dewey argues

that his 1990 felony conviction for the criminal sale of dan-

gerous drugs (ADC-90-155) is too stale to be counted as the

second qualifying predicate offense. If the 1990 conviction is

counted, the trial court properly classified Dewey as a career

offender.

[2] The applicable time period for counting prior felony

convictions is set out in Section 4A1.2(e) of the federal Sen-

tencing Guidelines, which provides in pertinent part:

(1) Any prior sentence of imprisonment exceeding

one year and one month that was imposed within fif-

teen years of the defendant’s commencement of the

instant offense is counted. Also count any prior sen-

tence of imprisonment exceeding one year and one

month, whenever imposed, that resulted in the defen-

dant being incarcerated during any part of such

fifteen-year period.

(2) Any other prior sentence that was imposed

within ten years of the defendant’s commencement

of the instant offense is counted.

UNITED STATES v. DEWEY 4885

(3) Any prior sentence not within the time periods

specified above is not counted.

Therefore, to count Dewey’s 1990 felony conviction, the sen-

tence he received must meet the requirements set out in

§ 4A1.2(e)(1) or (2).

[3] In 1990, Dewey was sentenced to fifteen years in

prison for the criminal sale of dangerous drugs. Thus, his

1990 conviction was for a controlled substance offense, and

resulted in a sentence of imprisonment exceeding one year

and one month. The suspended portion of Dewey’s 1990 sen-

tence was imposed in 1996, following his misdemeanor

assault conviction, and Dewey was incarcerated. Thus, even

though the sentence was imposed in 1990, more than fifteen

years before his present drug offense, he was incarcerated for

that 1990 controlled substance offense within fifteen years of

committing the instant offense.

The guidelines address the counting of a sentence in cases

like this one, where a prior sentence is suspended and then

later revoked. U.S.S.G. § 4A1.2(k)(2)(B)2 explains that:

Revocation of probation . . . may affect the time

period under which certain sentences are counted as

provided in § 4A1.2(d)(2) and (e). For the purposes

of determining the applicable time period, use the

following: (i) in the case of an adult term of impris-

onment totaling more than one year and one month,

the date of last release from incarceration on such

sentence (see § 4A1.2(e)(1)); . . . (iii) in any other

case, the date of the original sentence (see

§ 4A1.2(d)(2)(B) and (e)(2)).

2

The commentary to the career offender provisions directs the district

court to refer to § 4A1.2 when it computes criminal history for purposes

of determining whether a defendant qualifies as a career offender. See

U.S.S.G. § 4B1.2, application note 3.

4886 UNITED STATES v. DEWEY

[4] The provision’s plain language provides that, to qualify

as a career offender predicate offense, the sentence term must

exceed one year and one month; it does not require any partic-

ular length of actual incarceration. See U.S.S.G.

§ 4A1.2(k)(2)(B); see also U.S.S.G. § 4A1.2(b), comment n.2

(sentence pronounced, not time served, is relevant to career

offender designation); United States v. Romary, 246 F.3d 339,

343 n.3 (4th Cir. 2001) (applying a similar analysis). For sen-

tences that exceed one year and one month, the guideline

directs us to look to “the date of last release from incarcera-

tion on such sentence” to determine whether any period of

incarceration for that sentence occurred within fifteen years of

the instant offense. Because Dewey’s 1990 sentence was

greater than one year and one month, and his date of last

release from prison on that sentence was within the fifteen-

year period, the trial court did not err in concluding that

Dewey qualified as a career offender.

C. Unreasonable Sentence

Dewey contends that the district court imposed an unrea-

sonable sentence. We review criminal sentences for reason-

ableness. United States v. Booker, 543 U.S. 220, 260-62

(2005). Our review for reasonableness is a review for an

abuse of discretion. Gall v. United States, 552 U.S. 38, 51

(2007). We first ensure that the sentence is procedurally

sound, and then review the sentence for substantive reason-

ableness under an abuse of discretion standard. Id.

1. Procedural Error in Sentencing

[5] In Gall, the Court described instances of “significant

procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting

a sentence based on clearly erroneous facts, or failing to ade-

quately explain the chosen sentence . . . .” Id.

UNITED STATES v. DEWEY 4887

[6] Here, similar to the facts in Gall, the district court “cor-

rectly calculated the applicable Guidelines range, allowed

both parties to present arguments as to what they believed the

appropriate sentence should be, considered all of the [18

U.S.C.] § 3553(a) factors, and thoroughly documented [its]

reasoning,” and did not regard the Guidelines as mandatory.

Id. Therefore, we conclude that Dewey’s sentencing was pro-

cedurally sound.

2. Substantive Error in Sentencing

[7] The substantive component relates to the length of the

sentence. See United States v. Hamilton, 510 F.3d 1209,

1217-18 (10th Cir. 2007), cert. denied, ___ U.S. ___, 128 S.

Ct. 1922 (2008). The Hamilton court noted, “In evaluating the

substantive reasonableness of a sentence, we ask whether the

length of the sentence is reasonable considering the statutory

factors delineated in 18 U.S.C. § 3553(a).” Id. With respect to

the factors in § 3553(a), we have recently stated that:

[A]ppellate courts must give due deference to the

district court’s decision that the § 3553(a) factors, on

a whole, justify the extent of the variance. This def-

erence is required because the sentencing judge is in

a superior position to find facts and judge their

import under § 3553(a) in the individual case. The

judge sees and hears the evidence, makes credibility

determinations, has full knowledge of the facts and

gains insights not conveyed by the record. The sen-

tencing judge has access to, and greater familiarity

with, the individual case and the individual defen-

dant before him than the Commission or the appeals

court. Moreover, district courts have an institutional

advantage over appellate courts in making these

sorts of determinations, especially as they see so

many more Guidelines sentences than appellate

courts do. In arriving at a sentence, a district court

need not expressly state how each of the § 3553(a)

4888 UNITED STATES v. DEWEY

factors influenced its decision: the district court need

not tick off each of the § 3553(a) factors to show that

it has considered them. Instead, appellate courts

assume that district judges know the law and under-

stand their obligation to consider all of the § 3553(a)

factors, not just the Guidelines.

United States v. Autery, 555 F.3d 864, 872-73 (9th Cir. 2009)

(internal citations and quotations omitted). “Nevertheless, we

may reverse if, upon reviewing the record, we have a definite

and firm conviction that the district court committed a clear

error of judgment in the conclusion it reached upon weighing

the relevant factors.” United States v. Amezcua-Vasquez, 567

F.3d 1050, 1055 (9th Cir. 2009).

To support his position that the district court imposed an

unreasonable sentence, Dewey reviews the mandate of

§ 3553(a). For example, Dewey discusses that post Booker,

sentencing courts must (1) impose a sentence no greater than

necessary, (2) broaden consideration of the factors set out in

§ 3553(a), and (3) must not accord the Guideline calculation

greater weight than the other § 3553(a) factors. Though

Dewey correctly sets out the requirements upon which a dis-

trict court judge’s sentence is reviewed for substantive reason-

ableness, he does not point out or suggest that the district

court failed to account for the relevant factors.

[8] Dewey essentially makes two arguments to support his

contention that the sentence he received was unreasonable.

First, Dewey claims that he is not a “major dealer,” and the

sentence imposed was more appropriate for what a “major

dealer” would receive. However, he does not cite any author-

ity to support his position that career offender designation is

reserved for “major dealers.” The district court, in discussing

Dewey’s criminal history, noted that the instant offense was

Dewey’s third felony drug trafficking offense. Therefore,

Dewey’s within-guideline sentence cannot be deemed unrea-

UNITED STATES v. DEWEY 4889

sonable when his prior felony offenses bring him within the

Guidelines as a career offender.

Second, Dewey argues that his sentence is unreasonable in

light of the sentence his co-conspirator, Olson, received. 18

U.S.C. § 3553(a)(6) directs sentencing courts to consider the

need to avoid unwarranted sentence disparities among defen-

dants with similar records who have been found guilty of sim-

ilar conduct. Though Dewey cites this section, he does not

attempt to establish that Olson’s criminal record was similar

to his. Therefore, this claim is without merit, and we conclude

the district court did not abuse its discretion in imposing

Dewey’s reasonable sentence.

D. Withdrawal of Guilty Plea

Finally, Dewey contends the district court erred when it did

not treat his letter to the court, which pertained to his being

dissatisfied with Mr. Obie’s assistance, as a motion to with-

draw his guilty plea.

[9] To begin with, “[t]he Defendant has no ‘right’ to with-

draw his plea.” United States v. Rubalcaba, 811 F.2d 491, 493

(9th Cir. 1987). “If a motion for withdrawal of a plea of guilty

. . . is made before sentence is imposed . . . the court may per-

mit withdrawal of the plea upon a showing by the defendant

of any fair and just reason.” Id. (citing Fed. R. Crim. P.

11(d)(2)(B), formerly 32(d) (emphasis added)). The fair-and-

just standard requires a district court to vacate the guilty plea

when it is “shown to have been unfairly obtained or given

through ignorance, fear or inadvertence.” Rubalcaba, 811

F.2d at 493.

[10] At the ex parte hearing, the district court noted that no

motion to withdraw Dewey’s plea was before it. Moreover, at

the close of the ex parte hearing on the motion to withdraw

as counsel, the court recommended to both Mr. Obie and

Dewey that they talk fully and freely between themselves to

4890 UNITED STATES v. DEWEY

whatever extent they thought necessary and appropriate to be

prepared to go forward with sentencing. This statement by the

court to Mr. Obie and Dewey served as an implicit invitation

for them to file a formal motion to withdraw Dewey’s plea of

guilty should they deem such a motion necessary. No such

motion was filed. We hold that no error occurred when the

trial court did not treat Dewey’s letter as a motion to with-

draw his guilty plea. To the extent this issue is connected to

Dewey’s ineffective assistance of counsel claim, again,

Dewey is not foreclosed from raising such a claim in a § 2255

hearing.

III. CONCLUSION

We decline to review Dewey’s ineffective assistance of

counsel claim. We affirm the trial court’s other rulings.

AFFIRMED.