                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-1431
                         ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  Dennis DeStefano

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                          Submitted: November 18, 2013
                             Filed: January 23, 2014
                                  [Unpublished]
                                  ____________

Before SHEPHERD, BOWMAN, and BEAM, Circuit Judges.
                         ____________

PER CURIAM.

      Dennis DeStefano pleaded guilty under a written plea agreement to one count
of conspiracy to possess with intent to distribute oxycodone. In accordance with the
agreement, the District Court1 dismissed two remaining counts of possession with
intent to distribute oxycodone. The court sentenced DeStefano at the bottom of the
United States Sentencing Guidelines range to 100 months in prison, to be followed by
3 years of supervised release. DeStefano appeals, and we affirm.

       Initially, although a timely filed notice of appeal in a criminal case is not
jurisdictional, see United States v. Watson, 623 F.3d 542, 545–46 (8th Cir. 2010), we
address the government’s contention, made in its brief, that this appeal should be
dismissed as untimely. Judgment was filed November 26, 2012; the notice of appeal
is postmarked December 11, 2012; and the notice was filed December 12, 2012. After
briefing in this appeal was completed, DeStefano filed a declaration under Rule
4(c)(1) of the Federal Rules of Appellate Procedure and 28 U.S.C. § 1746. Under
penalty of perjury, he attests that he signed his notice of appeal and deposited it in the
internal mail system of the institution where he was incarcerated (which did not have
a system designed for legal mail) with first-class postage paid on December 9, 2012.
We therefore conclude that the notice of appeal was timely filed. See United States
v. Murphy, 578 F.3d 719, 720 (8th Cir.), cert. denied, 558 U.S. 1060 (2009).

       For his first issue on appeal, DeStefano argues that the District Court abused
its discretion when it declined his request to withdraw his guilty plea. See United
States v. Lawhorn, 735 F.3d 817, 819 (8th Cir. 2013) (standard of review). Under
Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure, a defendant may
withdraw a guilty plea if he “can show a fair and just reason for requesting the
withdrawal.” The burden is on the defendant to make that showing. United States v.
Norvell, 729 F.3d 788, 792 (8th Cir. 2013).




      1
        The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas.

                                           -2-
       At DeStefano’s sentencing hearing, he told the court that he was not satisfied
with his counsel and that he wanted to withdraw his guilty plea. He said that counsel
had recommended that DeStefano agree to a proffer in hopes that the government
would file a motion for a departure from the Guidelines sentencing range for his
substantial assistance. See U.S. Sentencing Guidelines Manual § 5K1.1. After two
proffer sessions, the government declined to move for a departure. As the prosecutor
explained at the sentencing hearing, DeStefano’s statements could not “be reconciled
with other people’s statements.” Tr. of Sent. Proc. at 6. DeStefano now argues that
counsel, relying on his fourteen years of success with defendant proffers resulting in
substantial-assistance motions, failed to advise DeStefano of the risk that the
government could decline to so move. DeStefano says that he would not have pleaded
guilty had he known he would not receive consideration for his proffer and that
counsel’s ineffective assistance in this regard constituted a fair and just reason to
withdraw his plea. Because the record as to counsel’s effectiveness during plea
proceedings was fully developed during the sentencing hearing and the District Court
actually ruled that counsel was not ineffective, we will consider DeStefano’s
argument. See United States v. Washburn, 728 F.3d 775, 785 (8th Cir. 2013) (noting
that claims of ineffective assistance of counsel are normally deferred to 28 U.S.C.
§ 2255 proceedings unless, inter alia, the record was fully developed in the district
court).

       Ineffective assistance of counsel in plea proceedings may be a fair and just
reason for withdrawal of a guilty plea. Lawhorn, 735 F.3d at 820. As is true for
ineffective-assistance claims in other contexts, the defendant must show deficient
performance by counsel—“below objective standards of reasonableness”—and
prejudice—a reasonable probability that the defendant would have opted to go to trial
but for counsel’s deficient performance. Id.

       Counsel stated at the sentencing hearing that he did recommend that DeStefano
enter into a proffer agreement with the government based on his “extensive review of

                                         -3-
the evidence” and his past successful experience with proffers resulting in substantial-
assistance motions. Tr. of Sent. Proc. at 4. But he further said that it “was made
known” to DeStefano that the decision whether to file a § 5K1.1 motion for a
departure would be made in the sole discretion of the government. Id. at 5. It is
undisputed that the addendum to DeStefano’s plea agreement (his proffer agreement
with the government) stated in no uncertain terms that the government alone would
determine whether DeStefano provided substantial assistance. In these circumstances,
we conclude that DeStefano has not shown that counsel’s performance was deficient.
The District Court did not abuse its discretion in denying DeStefano’s request to
withdraw his guilty plea on the basis of ineffective assistance of counsel.

       DeStefano also argues that the government breached the plea agreement and
that he should therefore be allowed to withdraw his plea. We review de novo issues
regarding enforcement of a plea agreement. United States v. Baker, 674 F.3d 1066,
1068 (8th Cir.), cert. denied, 133 S. Ct. 268 (2012).

       DeStefano claims that he “was led to believe . . . that the government would at
least request a reduction” and that the government’s failure to do so “amounts to
fraud.” Br. of Appellant at 12. He asserts throughout his brief that he had a long
proffer session with the prosecutor who never indicated that “anything he said was
misleading or incorrect” until months later, after he had pleaded guilty. Id. at 9. But
as we explained above, DeStefano entered into an agreement that clearly gave the
government sole and absolute discretion to determine whether he provided substantial
assistance. The government concluded that he did not, and barring “an
unconstitutional motive” for that decision or an “irrational determination” regarding
that decision—and DeStefano offers none here—he cannot succeed on his claim that
the government breached the plea agreement by declining to file a § 5K1.1 motion.
United States v. Fields, 512 F.3d 1009, 1011 (8th Cir. 2008).




                                          -4-
        In addition to arguing that counsel was ineffective in the plea proceedings,
DeStefano contends that counsel was ineffective at sentencing. Ineffective-assistance
claims are normally deferred to 28 U.S.C. § 2255 proceedings unless the record was
fully developed in the district court, failure to act would result in a plain miscarriage
of justice, or the claimed error is readily apparent. Washburn, 728 F.3d at 785.
DeStefano argues that the record was sufficiently developed because he “raised his
claim and his attorney responded,” citing that portion of the sentencing transcript
concerning the request to withdraw the plea based on ineffective assistance. Br. of
Appellant at 13. There was no record developed, however, on his claims that counsel
was ineffective later on at sentencing for failing to give the court character-reference
letters and his resume and for not making the court aware of his church activities. We
decline to consider this ineffective-assistance claim on direct appeal.

       Finally, DeStefano argues that the District Court improperly relied on
allegations the government made at the change-of-plea hearing and the sentencing
hearing that he “involved a large number of people in this conspiracy, including his
own daughter and his wife.” Tr. of Sent. Proc. at 15; see also Tr. of Change of Plea
Proc. at 14 (“Codefendants have also stated that [DeStefano] would periodically leave
oxycodone tablets with his wife . . . for distribution.”). When sentencing DeStefano,
the court noted that DeStefano “involved his wife and his daughter in” a conspiracy
to distribute oxycodone, which the District Court found “particularly heinous.” Id. at
18. DeStefano claims that the court’s consideration of these allegations violated his
Fifth Amendment due-process rights and his Sixth Amendment right to confront the
witnesses against him.

        DeStefano did not object to the government’s statement or to the court’s
consideration of it, so we review for plain error. See United States v. Schlosser, 558
F.3d 736, 739 (8th Cir. 2009). To prevail on this claim, DeStefano must show error,
that is plain, that affects his substantial rights, and that “seriously affects the fairness,



                                            -5-
integrity, or public reputation of judicial proceedings.” Id. at 740 (citations to quoted
cases omitted).

       “[T]he confrontation clause does not apply in sentencing proceedings,”
provided that “the out-of-court information relative to the circumstances of the crime
bears an indicia of reliability.” United States v. Wallace, 408 F.3d 1046, 1048 (8th
Cir.) (per curiam), cert. denied, 546 U.S. 1069 (2005). The question of reliability
depends on the facts of the case and is committed to the discretion of the sentencing
court. United States v. Grandon, 714 F.3d 1093, 1097 (8th Cir. 2013).

        The District Court judge knew that both DeStefano’s wife and his daughter
were indicted as co-conspirators on the same charge of conspiracy to possess with
intent to distribute oxycodone. He was in fact the judge assigned to the cases of all
DeStefano’s co-defendants, including DeStefano’s wife and daughter. DeStefano
admitted that he recruited people he knew to distribute oxycodone. While he did not
specifically admit to recruiting his wife and daughter at either the change-of-plea
hearing2 or the sentencing hearing, his admission was not required in order for the
District Court to rely on that information because, we conclude, it had sufficient
indicia of reliability. And the District Court did not use the information to increase
the Guidelines range but only to determine a sentence within that range. See Wallace,
408 F.3d at 1048 (concluding that the district court did not err in using out-of-court
statements that had sufficient indicia of reliability to enhance defendant’s offense
level); cf. Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013) (holding that facts
used to increase the statutory minimum sentence must be found by a jury and noting
its prior holding that facts used to increase the statutory maximum must be found by


      2
        At the change-of-plea hearing, counsel did advise the court that DeStefano
took issue with the government’s statement that co-defendants had said that DeStefano
“would give pills to his wife for distribution.” Tr. of Change of Plea Proc. at 14. The
record on that allegation was not further developed, however, because it was not an
element of the offense to which DeStefano was pleading guilty.

                                          -6-
a jury). Moreover, DeStefano was sentenced to a presumptively reasonable sentence
at the low end of the Guidelines range. See Gall v. United States, 552 U.S. 38, 51
(2007). There is no plain error.

      We affirm the judgment of the District Court in all respects.
                      ______________________________




                                        -7-
