United States v. Jones

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50832 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JAMES STEPHEN JONES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-91-CR-55-1 -------------------- June 26, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

James Stephen Jones, federal prisoner # 56081-080, appeals the

district court’s judgment in which the district court vacated his

18 U.S.C. § 924(c) conviction pursuant to Bailey v. United States,

516 U.S. 137 (1995), and resentenced him on the remaining three

convictions. Jones argues that Judge Walter Smith erred in not sua

sponte recusing himself because Jones had filed a separate civil

action against him. Because Judge Smith would be entitled to

absolute immunity from liability in Jones’ civil action, see Boyd

v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994), a reasonable person

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-50832 -2-

would not have doubts about Judge Smith’s impartiality based on

Jones’ civil action against him. See Levitt v. University of Texas

at El Paso, 847 F.2d 221, 226 (5th Cir. 1988).

Jones argues that his counsel was ineffective in that she had

an actual conflict, she failed to file a notice of appeal, failed

to order transcripts, failed to provide an transcript order form to

Jones, and failed to file a motion for recusal of Judge Smith.

Because the record was not adequately developed in the district

court, we decline to review all but one of Jones’ claims that his

counsel was ineffective at this time without prejudice to Jones’

right to raise these claims in a future 28 U.S.C. § 2255 motion.

See United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995).

The record is, however, sufficiently developed to review

Jones’ claim that his counsel was ineffective for failing to file

an appeal. Jones timely filed a pro se notice of appeal of the

district court’s judgment on remand. Thus, he has not shown that

he was prejudiced by his counsel’s failure to file a notice of

appeal. See Goodwin v. Johnson, 132 F.3d 162, 170 (5th Cir. 1997).

Jones argues that the district court should have allowed him

to withdraw his guilty plea because the plea agreement was defunct

after his § 924(c) conviction was vacated. Jones’ case is

distinguishable from United States v. Moulder, 141 F.3d 568 (5th

Cir. 1998). In Moulder, the defendants pleaded guilty to using and

carrying a firearm during a drug-trafficking offense pursuant to

plea agreement in which the Government agreed to drop a related

drug charge. Id. at 570. The firearm offenses were subsequently

vacated pursuant to Bailey; the defendants subsequently were No. 99-50832 -3-

indicted and pleaded guilty to the drug offense. Id. The court

held that the second conviction did not violate the Double Jeopardy

Clause. Id. at 571-72. Jones originally pleaded guilty to four

offenses; Jones’ § 924(c) conviction was subsequently vacated.

Jones’ plea agreement did not become defunct merely because his

Jones’ § 924(c) conviction was vacated. Moulder is inapplicable to

the instant case.

For the first time on appeal, Jones argues that the district

court did not inform him that he would waive his right to a jury

trial by pleading guilty. Because Jones did not raise this

argument in the district court at the evidentiary hearing on

remand, review is limited to plain error. Under Fed. R. Crim.

P. 52(b), this court may correct forfeited errors only when the

appellant shows the following factors: (1) there is an error,

(2) that is clear or obvious, and (3) that affects his substantial

rights. United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.

1994) (en banc) (citing United States v. Olano, 507 U.S. 725, 730-

36 (1993)). If these factors are established, the decision to

correct the forfeited error is within the sound discretion of the

court, and the court will not exercise that discretion unless the

error seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Olano, 507 U.S. at 736.

Jones’ argument is frivolous. Jones was advised of his right to a

jury trial at the rearraignment hearing, along with other

constitutional rights, and he waived that right by entering a

guilty plea. No. 99-50832 -4-

Jones argues for the first time on appeal that he was coerced

into pleading guilty because he was told that, if he did not, his

wife would be prosecuted and would go to prison for 12 to 15 years.

Because Jones did not raise this issue in the district court,

review is limited to plain error. See Calverley, 37 F.3d at

162-64. The record of the rearraignment hearing indicates that

Jones’ guilty plea was knowing and voluntary. Jones expressly

stated that he was pleading guilty freely and voluntarily. He also

stated that no one had threatened, forced, or coerced him into

pleading guilty. Id. Jones’ “[s]olemn declarations in open court

carry a strong presumption of verity.” Blackledge v. Allison, 431

U.S. 63, 74 (1977). Jones has not shown plain error concerning the

voluntariness of his guilty plea.

Jones argues that the district court erred in enhancing his

sentence for possession of a firearm pursuant to § 2D1.1(b)(1) of

the United States Sentencing Guidelines. Section 2255 provides

authority for the district court to resentence a defendant and

apply the enhancement under § 2D1.1(b)(1) when the defendant’s

§ 924(c) conviction is vacated. See United States v. Benbrook, 119

F.3d 338, 339-40 (5th Cir. 1997); United States v. Hernandez, 116

F.3d 725, 727-28 (5th Cir. 1997). In view of the evidence

presented at the evidentiary hearing held by the district court on

remand, Jones has not shown that the district court’s factual

finding that he possessed firearms in connection with his drug No. 99-50832 -5-

offense was clearly erroneous. See United States v. Eastland, 989

F.2d 760, 770 (5th Cir. 1993); United States v. Devine, 934 F.2d

1325, 1339 (5th Cir. 1991).

AFFIRMED.