                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-17-2005

Jones v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3032




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-3032


                                  CLIFFORD JONES,
                                              Appellant

                                            v.

                           UNITED STATES OF AMERICA


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF NEW JERSEY
                              D.C. Civil No. 02-cv-01720
               District Judge: The Honorable Joseph A. Greenaway, Jr.


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 2, 2004


                Before: ALITO, BARRY, and FUENTES, Circuit Judges


                             (Opinion Filed: May 17, 2005)


                                       OPINION




BARRY, Circuit Judge

      Clifford Jones challenges the May 15, 2003 order of the District Court which

rejected his claim that counsel was ineffective and denied his motion under 28 U.S.C. §
2255. The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 2255,

and we have jurisdiction pursuant to 28 U.S.C. §§ 2255 and 2253. We will affirm.

                                               I.

       On August 28, 1998, Clifford Jones pled guilty to conspiracy with intent to

distribute more than 100 grams of heroin. The plea agreement, signed by Jones, stated,

among other provisions, that “the sentencing judge may impose the maximum term of

imprisonment,” and that the statutory maximum was forty years.

       At the outset of the Rule 11 hearing, the District Court asked Jones, who was

under oath, whether he had discussed the case with his attorney, and whether he was

satisfied with his representation. Jones responded affirmatively to both questions. The

prosecutor then informed the Court that if Jones pled guilty, he would face a sentence of

up to forty years imprisonment. The Court asked Jones if this comported with his

understanding of the terms of the plea agreement. Jones responded that it did.

       The Court then asked Jones’ counsel what he told Jones would be “the worst case

scenario.” Counsel responded by noting that there was some disagreement on this point,

due to a dispute about Jones’ criminal history category. He stated, “the reason for that is,

there’s still some issues to be resolved as to prior convictions, their use, and their

certifications.” A46. Although Jones’ counsel anticipated that the worst sentence Jones

would receive was between 84 to 105 months imprisonment, he “very, very carefully and

in detail” discussed the statutory maximum with Jones. Id. at 47.



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       The Court then explained to Jones:

       “I want you to understand something: This worst case scenario . . . is based
       on [your counsel’s] present understanding of the facts . . . It is possible that
       the presentence investigation will uncover additional facts which could
       have the effect of aggravating, worsening, the offense. . . .
       The important thing for you to understand today is that, if the guideline
       range ends up coming in higher than the worst case scenario, which you’ve
       been informed, you would not have the right to withdraw the plea.
       Do you understand that?

       Jones: Yes, sir.

A47-48.

       The Court then advised Jones that it “would be empowered to sentence you to a

maximum term of imprisonment of 40 years . . . [and] that your criminal history is an

important factor in [sentencing.]” A51. In addition, the Court again asked, “Do you

understand that, until a presentence report is prepared, it is impossible for either the Court

or for your attorney to know precisely what sentence range will be prescribed by the

guidelines.” A53. Jones responded that he understood. When asked a third time if he

understood the possibility of receiving a greater sentence than his attorney anticipated,

Jones said that he did. Jones was again told that he would “not be able to withdraw [his]

plea on the ground that [his counsel’s] prediction as to the guideline range proved to be

inaccurate.” A53-54. The Court accepted the plea after finding that Jones understood the

questions he had been asked and answered responsively, and that the plea was entered

intelligently, knowingly, and voluntarily.

       Thereafter, the Probation Department, in the Presentence Investigation Report

                                              3
(“PIR”), determined that Jones was a “career offender” under U.S.S.G. § 4B1.1. As a

career offender, Jones was subject to a sentencing range of 188 to 235 months

imprisonment, which was, of course, a longer sentence than had been anticipated by

counsel.

        On October 12, 1999, the District Court rejected Jones’ motion for a downward

departure and sentenced him to 188 months incarceration. Jones appealed, challenging on

appeal only the denial of his motion for a downward departure. We dismissed the appeal

for lack of jurisdiction, and the Supreme Court denied certiorari on or about April 16,

2001.

        On April 15, 2002, Jones filed a § 2255 motion alleging ineffective assistance of

counsel at the entry of his guilty plea, at sentencing, and on direct appeal. Jones

essentially argued that if he had known that he “would be sentenced to such a long time in

prison,” he “would never have given up [his] trial rights.” A134. In its opinion and order

dated May 15, 2003, the District Court denied Jones’ § 2255 motion. Jones sought, and

we granted, a certificate of appealability.

                                              II.

        Jones argues that, in violation of his Sixth Amendment right to effective assistance

of counsel, counsel should have advised him, prior to the entry of his guilty plea, of the

potential for sentencing as a career offender. He challenges, as well, counsel’s

“misrepresentation” of the potential sentence itself. (App. Br. at 2). To prevail on his



                                              4
Sixth Amendment claim, Jones must satisfy the two-prong test articulated by the Supreme

Court in Strickland v. Washington, 466 U.S. 668 (1984). That is, Jones must demonstrate

that his counsel’s performance was deficient and that this deficient performance

prejudiced him. See, e.g., Williams v. Taylor, 529 U.S. 362, 390-91 (2000). He has not

done so.

       We have detailed at some length the questions asked and answers given at the Rule

11 colloquy which leaves no doubt that Jones knew that he faced as much as forty years’

imprisonment, that his counsel anticipated a sentence substantially shorter than that but

had discussed a potential forty year sentence with him, and that the appropriate sentencing

range would not be known until the PIR was prepared. We see no need to reprise that

discussion here. Suffice it to say, there is no act of nor omission by counsel that would

warrant a finding of ineffective assistance. See United States v. Martinez, 169 F.3d 1049,

1053 (7th Cir. 1999) (an attorney’s “mere inaccurate prediction of a sentence” does not

demonstrate the deficiency component of an ineffective assistance of counsel claim);

Thomas v. United States, 27 F.3d 321 (8th Cir. 1994) (no pre-plea warning of potential

career offender status but defendant advised of statutory maximum; no denial of effective

assistance of counsel); cf, United States v. Lambey, 974 F.2d 1389, 1394-95 (4th Cir.

1992) (attorney error in estimating sentence does not constitute prejudice if the plea

colloquy corrects or clarifies the earlier erroneous information). Jones’ § 2255 motion

was properly denied.



                                             5
                                   III.

We will affirm the order of May 15, 2003.




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