     Case: 16-30300   Document: 00513990365     Page: 1   Date Filed: 05/12/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                 No. 16-30300                            FILED
                                                                     May 12, 2017
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

                        Plaintiff - Appellee

v.

AKEIN SCOTT, also known as Keemy,

                        Defendant - Appellant



                Appeals from the United States District Court
                    for the Eastern District of Louisiana


Before JONES, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:
      Akein Scott and his brothers were members of the Frenchmen/Derbigny
gang. On Mother’s Day 2013, Akein and one of his brothers opened fire at a
second-line parade in New Orleans, intending to kill a rival gang member.
They shot the intended victim and 19 innocent bystanders. Akein was named
in a 24-count Third Superseding Indictment charging racketeering, drug
trafficking, and firearms conspiracies, as well as a host of violent offenses in
aid of those conspiracies. Akein was also indicted for four separate shootings
that occurred prior to the Mother’s Day shootings.
      Before Akein pled guilty, the Government informed Akein about the
uncharged murder of James Gould, unrelated to the Mother’s Day shootings,
which the Government believed to be linked to Akein’s family. Akein denied
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having seen Gould. Akein’s attorney told the Government that her client
would plead guilty, though if the Government intended to introduce evidence
of this murder as relevant conduct at sentencing, she would not advise him to
plead guilty. The Government replied that it did not intend to introduce this
evidence of the homicide, but emphasized that the investigation was ongoing
and it could not guarantee that the investigation would not garner more
evidence.
      Akein nevertheless pled guilty, pursuant to a written plea agreement, to
RICO conspiracy (Count 1); conspiracy to distribute and possess with intent to
distribute controlled substances (Count 2); conspiracy to use and possess
firearms during, in relation to, and in furtherance of a crime (Count 3); four
counts of assault with a dangerous weapon in furtherance of racketeering
(Counts 7, 9, 11, and 13); and discharging a firearm during and in relation to
a crime of violence and a drug trafficking crime (Count 19). In exchange for
Scott’s guilty plea, the Government agreed that it would move to dismiss six
remaining counts in the indictment. The Government also agreed that it would
not bring further charges for any other drug offenses committed prior to
May 15, 2013, and gave Akein a three-level reduction in his guidelines offense
level for acceptance of responsibility.
      Akein’s plea agreement provided that, in determining an appropriate
sentence, the district court had the authority and discretion to consider “any
and all ‘relevant conduct’ that the defendant was involved in during the course
of the conspiracy.” The agreement further provided that the statements set
forth therein represented the “defendant’s entire agreement with the
Government” and stated that there were no “other agreements, letters, or
notations that will affect this agreement.” Akein also waived his right to
collaterally attack his sentence and waived his right to appeal the guilty plea,
conviction, sentence, fine, supervised release, and any restitution imposed. He
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reserved, however, the right to appeal a sentence in excess of the statutory
maximum and to bring a claim of ineffective assistance of counsel.
      Approximately two months after Akein entered his guilty plea, the
Government filed a motion to consolidate the sentencing hearings of the Scott
brothers. In that motion, the Government announced its intention to introduce
evidence at sentencing that the Scott brothers murdered Gould in furtherance
of the RICO and drug trafficking conspiracy. Akein opposed the motion to
consolidate the sentencing hearings, but the district court nevertheless
granted the Government’s motion.       Thereafter, the district court held an
evidentiary hearing on the Mother’s Day shootings and the murder of Gould to
determine whether the Government could “show some basis for any
enhancements to possible sentences.”       Akein filed, and the Government
responded to, a sentencing memorandum objecting to the consideration of
relevant conduct evidence.
      The PSR, which included Gould’s murder as relevant conduct, calculated
Akein’s total offense level to be 45. With a criminal history category of I, the
guidelines range of imprisonment was life. The district court overruled Akein’s
objection to the PSR’s inclusion of the Gould murder as relevant conduct and
stated that it would have imposed the same sentence even if it had sustained
his objections. The district court sentenced Akein to life imprisonment on
Count 1 and Count 2 and to concurrent 240-months terms of imprisonment on
Counts 3, 7, 9, 11, and 13 as well as a 120-month term of imprisonment on
Count 19, to be served consecutively to all other sentences. Akein timely
appealed.
                                DISCUSSION
      Although Akein waived his rights to appeal and collaterally attack his
conviction and sentence, a claim regarding “[a]n alleged breach of a plea
agreement may be raised despite a waiver provision.” United States v. Purser,
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747 F.3d 284, 289 (5th Cir. 2014) (internal quotation marks omitted). An
appeal waiver also does not bar an attack on the voluntariness of a plea.
United States v. White, 307 F.3d 336, 343 (5th Cir. 2002).
   A. Breach of Plea Agreement
      Akein argues that the Government breached the plea agreement in
presenting evidence of the Gould murder at sentencing after leading Akein to
believe that it did not have, and would not present, evidence linking Akein to
this murder.    The Government denies breaching the plea agreement and
contends that it never promised not to present evidence of the Gould murder
as relevant conduct.
      This court reviews de novo a preserved claim that the Government
breached the plea agreement. Purser, 747 F.3d at 290. The burden is on the
defendant to prove a breach by a preponderance of the evidence. Id. In
determining whether a breach occurred, this court decides “whether the
Government’s conduct is consistent with the defendant’s reasonable
understanding of the agreement.” United States v. Hinojosa, 749 F.3d 407, 413
(5th Cir. 2014) (internal quotation marks omitted). A defendant’s subjective
belief about the agreement’s terms may not constitute a reasonable
understanding and may not be sufficient to establish a breach. United States
v. Wittie, 25 F.3d 250, 262 (5th Cir. 1994).
      The plea agreement expressly states that the court has the authority to
consider all relevant conduct that the defendant was involved in during the
course of the conspiracy, the nature and circumstances of the offenses, and the
history and characteristics of the defendant. The plea agreement makes no
promises limiting the Government’s use of relevant conduct and does not
restrict the Government from introducing evidence surrounding the Gould
murder. The agreement further declared that the statements set forth in the
plea agreement represented the “defendant’s entire agreement with the
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Government” and stated that there were no “other agreements, letters, or
notations that will affect this agreement.”
       The Government did not breach any of the promises made in the plea
agreement. Akein received the benefit of his bargain when the Government
dismissed a host of counts against him in exchange for his guilty plea. Akein
has not provided us any authority that the Government is obligated to provide
a defendant with the evidence it will present at sentencing. Such an obligation
could, like material impeachment evidence, “risk[] premature disclosure of
Government witness information” and “disrupt ongoing investigations and
expose prospective witnesses to serious harm.” United States v. Ruiz, 536 U.S.
622, 631–32, 122 S. Ct. 2450, 2456 (2002) (internal quotation marks omitted). 1
That Akein subjectively believed the Government would not present evidence
connecting him to the murder of Gould is a “misapprehension under which a
defendant . . . labor[s],” but the Constitution “does not require complete
knowledge of the relevant circumstances, but permits a court to accept a guilty
plea, with its accompanying waiver of various constitutional rights.” Id. at
630, 2456.
   B. Validity of Guilty Plea
       In a slight twist on the foregoing argument, Akein contends that the
Government’s misleading statements and failure to disclose evidence linking
Akein to the Gould murder and its ultimate presentation of this evidence at
sentencing rendered his guilty plea unknowing and involuntary. He contends




       1 The Department of Justice instructs its prosecutors that their professional duties
exceed the constitutional minimum. See U.S. Dep’t of Justice, U.S. Attorneys’ Manual, 9-
5.000. Consistent with best practices, the Sentencing Commission similarly encourages
prosecutors to disclose before a defendant pleads guilty “the facts and circumstances of the
offense and offender characteristics, then known to the prosecuting attorney, that are
relevant to the application of the sentencing guidelines.” U.S.S.G. § 6B1.2, comment.
Neither, however, confers defendants with pre-plea discovery rights.
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that he was not aware of the relevant circumstances and the likely
consequences of his decision to plead guilty and suggests that the Government
induced his guilty plea by misrepresentations. 2
      The validity of a guilty plea is a legal question that this court reviews de
novo. United States v. Bustos-Useche, 273 F.3d 622, 625 (5th Cir. 2001). A
guilty plea must be made knowingly and voluntarily. United States v. Reyes,
300 F.3d 555, 558 (5th Cir. 2002). A guilty plea entered by a defendant fully
aware of the direct consequences is valid unless induced by threats,
misrepresentations, or improper promises, such as bribes. Brady v. United
States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472 (1970). “The Constitution does
not require a great deal of knowledge on the part of the defendant.” United
States v. Guerra, 94 F.3d 989, 995 (5th Cir. 1996). If the defendant is aware of
the potential maximum prison term and fine for the offense charged, but
nevertheless pleads guilty, his plea is knowingly and intelligently entered. Id.
      Although Akein claims to have been misled about whether the
Government would, as a result of further investigation, offer evidence of
Gould’s murder at his sentencing, this claim fails.                 First, any agreement
amounts to a side agreement that was not embodied in the written plea
agreement and, crucially, is contradicted by that agreement’s express terms.
Second, there is no dispute that the guilty plea colloquy fully informed Akein
of the most salient information:              that his maximum sentence was life
imprisonment and any relevant conduct might be considered by the court.
Guerra, 94 F.3d at 995. Third, defense counsel acknowledged in her pleading
that the Government emphasized during the pre-plea discussion that its
investigation of the Gould murder was ongoing so it could not guarantee that
it would not develop more evidence. Defense counsel should also have been


      2   Curiously, however, Akein did not move in the trial court to revoke his plea.
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aware that the Government could not withhold evidence of relevant conduct
from the sentencing court. See 18 U.S.C. § 3661; United States v. Casillas,
853 F.3d 215, 218 (5th Cir. 2017). Put together, these facts demonstrate that
any misunderstanding that was in the minds of the defense, was unfounded,
and is insufficient to undermine the knowing and voluntary nature of Akein’s
plea.
   C. Ineffective Assistance of Counsel
        Akein argues that the Government’s actions rendered his counsel’s
assistance ineffective because his counsel was deprived of information needed
to make an accurate assessment whether Akein should enter a guilty plea.
        But contrary to Akein’s assertion, the record is not sufficiently developed
to permit review of his ineffective assistance of counsel claim on direct appeal.
The district court did not take testimony or make factual findings concerning
the effectiveness of counsel’s representation. United States v. Isgar, 739 F.3d
829, 841 (5th Cir. 2014); United States v. Kizzee, 150 F.3d 497, 502–03 (5th Cir.
1998) (holding the record insufficient because district court did not hear sworn
testimony or make factual findings on ineffective assistance claims). This
court considers these claims in only the “rare cases” that a reviewing court may
fairly evaluate the merits of the claim. Isgar, 739 F.3d at 841. This is not such
a case, and accordingly, we deny Akein’s ineffective assistance of counsel claim
without prejudice to collateral review.
                                    CONCLUSION
        The conviction and sentence of Akein Scott is AFFIRMED.




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