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United States v. Allen

United States Court of Appeals, Fifth Circuit

March 20, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
CALVIN ALLEN, Defendant-Appellant

          Appeal from the United States District Court for the Southern District of Mississippi

          Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.

          JAMES C. HO, CIRCUIT JUDGE.

         Our court previously granted a certificate of appealability (COA) to Calvin Allen on two claims-first, that the government breached its obligations under his plea agreement when it failed to credit his cooperation in a murder conviction, and second, that Allen received ineffective assistance of counsel due to his attorney's failure to object to the government's breach of his plea agreement. We now conclude that the district court should have held an evidentiary hearing on Allen's ineffective counsel claim. Accordingly, we vacate the judgment and remand for a limited evidentiary inquiry.

         I.

         Allen pleaded guilty to one count of conspiracy to possess with intent to distribute a controlled substance. In exchange for Allen's plea and waiver of the right to appeal, the government promised that it would:

inform the United States Probation Office and the Court of [1] [the plea agreement], [2] the nature and extent of Defendant's activities with respect to this case and [3] all other activities of Defendant which the U.S. Attorney deems relevant to sentencing, including the nature and extent of Defendant's cooperation with the U.S. Attorney and law enforcement.

         Allen cooperated with prosecutors, providing them with information about his co-conspirators in his drug case. He also provided information leading to the prosecution of an unrelated murder.

         The presentence report (PSR) included information about Allen's cooperation in the drug case, but not the murder. On appeal, Allen claims that this omission constitutes a breach of the plea agreement by the government. But Allen failed to identify any such breach to the district court: He did not object to the PSR. Nor did he object during the sentencing hearing. The court subsequently sentenced him to 188 months in prison and 5 years of supervised release.

         Allen filed a timely pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, alleging that he received ineffective assistance of counsel. He asserted that the plea agreement obligated the government to inform the sentencing court about his cooperation in the murder investigation, as well as the drug prosecution. And when the government failed to do so, Allen contends that his counsel should have either objected or moved for a downward departure in his sentence. In Allen's view, this error potentially deprived him of a lower sentence. He also requested an evidentiary hearing on his claim under 28 U.S.C. § 2255(b).

         The district court ordered Allen's attorney to respond to the allegations of ineffective counsel. Allen's counsel averred that (1) he believed the government discharged its obligation under the plea because the PSR included information about Allen's cooperation; and (2) he and Allen decided not to move for a downward departure based on Allen's cooperation because raising mitigating circumstances would open the door to the court considering aggravating circumstances.

         For its part, the government argued that (1) Allen procedurally defaulted on any claim that the government violated its plea; and (2) Allen's counsel was not constitutionally ineffective.

         The district court denied Allen's motion without an evidentiary hearing, after concluding that (1) the government did not breach its plea obligations; and (2) Allen's ineffective assistance claim fails because ...


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