United States v. Taylor

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 18, 2003

Charles R. Fulbruge III Clerk No. 01-21058 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES H. TAYLOR, JR.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-580-1 --------------------

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

PER CURIAM:*

Defendant-Appellant James H. Taylor, Jr., appeals his

conviction and sentence for possession of counterfeit U.S.

currency. We affirm.

We review Taylor’s argument that the government breached the

plea agreement for plain error only and hold that the record

evidences neither express nor implicit advocacy by the government

in favor of a U.S.S.G. § 3B1.1(a) adjustment in contravention of

the plea agreement, as it is construed by Taylor. See United

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. States v. Wilder, 15 F.3d 1292, 1301 (5th Cir. 1994). We further

hold, on plain error review, that the record is devoid of evidence

to support Taylor’s contention that the district judge

impermissibly participated in the plea negotiations. See FED.

R. CRIM. P. 11(e)(1) (2001); United States v. Vonn, 122 S. Ct. 1043,

1046 (2002). Neither is Taylor’s belief that the district judge

was biased in favor of reaching a plea agreement substantiated by

the record; his unsupported subjective belief is an insufficient

ground on which to invalidate his guilty plea. See Matthews v.

United States, 569 F.2d 941, 943-44 (5th Cir. 1978).

We also hold, on plain error review, that Taylor’s waiver of

appeal was valid and that he was sufficiently informed of its terms

by the district court. See FED. R. CRIM. P. 11(c)(6) (2001); Vonn,

123 S. Ct. at 1046. Having held Taylor’s appeal waiver valid, we

are without jurisdiction to review the issue whether the district

court erred in refusing to depart downwardly pursuant to U.S.S.G.

§ 3E1.1(a). United States v. Melancon, 972 F.2d 566, 570 (5th Cir.

1992).

We also reject the contention that Taylor’s guilty plea was

rendered invalid by counsel’s alleged ineffective assistance.

Taylor has not established the requisite prejudice: He has failed

to show that, but for counsel’s alleged deficiencies, Taylor would

have insisted on going to trial. See Hill v. Lockhart, 474 U.S.

52, 59 (1985); Strickland v. Washington, 466 U.S. 668, 687-94, 697

(1984). Finally, the district court did not plainly err in

2 imposing a two-level enhancement pursuant to U.S.S.G. § 5K2.0.

Even though the involvement of family members in a criminal scheme

may not be a factor expressly taken into consideration by the

Sentencing Commission, its consideration in sentencing is neither

forbidden nor discouraged. See Koon v. United States, 518 U.S. 81,

95 (1996); U.S.S.G. §§ 5H1.1-12, 5K2.1-21.

AFFIRMED; Motion for partial dismissal of appeal denied as

moot.