USCA1 Opinion
December 12, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1155
GERALD W. CLEMENTE,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Gerald W. Clemente on brief pro se.
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Donald K. Stern, United States Attorney, and Alexandra
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Leake, Assistant U.S. Attorney, on brief for appellee.
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Per Curiam. George W. Clemente appeals the
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summary denial of his 2255 motion for relief from the
sentence imposed upon his guilty plea. We affirm.
Clemente is a former police captain in the
Metropolitan District Commission Police. In April, 1986, he
admitted to masterminding a long-standing scheme to steal
advance copies of civil service examinations and sell them to
policemen around the state so they could cheat and obtain
fraudulent promotions. Pursuant to a plea bargain with
federal and state prosecutors, Clemente agreed to cooperate
with the authorities in exchange for various concessions
relating to pending and future charges, and the conditions of
his confinement. As part of the bargain, Clemente pled
guilty to a single count of racketeering in violation of the
Racketeer Influenced and Corrupt Organizations Act (RICO), 18
U.S.C. 1962. The crime carried a maximum possible
imprisonment penalty of twenty years.
The government agreed to recommend, and did
recommend, imposition of a twenty-year sentence on the RICO
charge to run concurrently with a state sentence which
Clemente was already serving for an unrelated theft from the
Depositors Trust Company in Malden. The district court did
not choose to follow the government's recommendation in this
regard, however, instead sentencing Clemente to a fifteen-
year term for his federal crime, to begin upon completion of
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the state sentence. This is Clemente's third
assault in federal court on the consecutiveness of his
sentence. In a direct appeal from imposition of the
sentence, he argued that the government breached the plea
agreement by failing to repeat the recommendation orally at
the sentencing hearing. Finding no breach of the agreement,
"either in its letter or spirit," this court affirmed the
sentence. United States v. Doherty, 867 F.2d 47, 72 (1st
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Cir.), cert. denied, 492 U.S. 918 (1989).
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Shortly thereafter, Clemente moved in the district
court for a reduction of the sentence under Fed. R. Crim. P.
35(b), arguing that its effect was to unfairly require him to
serve a minimum of thirty years in state custody before
commencing his federal term. The government again joined in
urging the court to revise Clemente's sentence to run
concurrently with the state sentence. In an independent
review, the court found Clemente's argument "to be utterly
without substance." United States v. Clemente, 729 F. Supp.
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165, 167 (D. Mass. 1990). In reaching this decision, the
court clearly explained its reasoning under the sentencing
laws applicable to Clemente's terms of imprisonment.
Under his state sentence, Clemente is eligible for
parole after serving one-third of his minimum term
of confinement. He presently has a state parole
eligibility date of December 7, 1995. Under the
law in effect at the time this Court imposed its
federal sentence on Clemente, he will become
eligible for parole after serving one-third of his
federal sentence, in this case five years. Even a
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twenty year concurrent federal sentence (it will be
remembered that this Court imposed a 15 year
sentence upon Mr. Clemente) would place his federal
release date sometime before December 7, 1995,
resulting in no time whatsoever being served for
the extraordinarily serious racketeering offense of
which he has been convicted.
Id. Then, after carefully revisiting the equities and the
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law and, though not required to, consulting the new
sentencing guidelines for purposes of comparison, the court
again concluded that the sentence imposed was just. Id. at
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170. Clemente did not appeal.
Presumably spurred by the approach of his state
parole eligibility date, Clemente now collaterally renews his
quest for a concurrent sentence with an argument not
previously urged. He now argues that the prosecution's
promise to recommend imposition of a concurrent federal
sentence was void ab initio, because the sentencing court did
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not have the "power" to impose such a sentence under the law
applicable to his crime. For crimes committed prior to
November 1, 1987, there is no formal mechanism for providing
that a federal sentence will be served concurrently with an
existing state sentence.1 Generally, a sentencing court may
achieve this result only by "recommending" to the Attorney
General that the Bureau of Prisons designate the state prison
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1. For offenses committed after November 1, 1987, 18 U.S.C.
3584(a) (1984), now expressly authorizes the district court
to impose concurrent sentences. See H.R. Rep. No. 1030, 98th
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Cong. 2d Sess. 126-27, reprinted in 1984 U.S. Code Cong. &
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Ad. News 3309-10 [House Report].
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as the place of confinement for service of the federal
sentence. See 18 U.S.C. 4082(b) (1982)2; James B. Eaglin,
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Sentencing Federal Offenders for Crimes Committed Before
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November 1, 1987 at 6-7 (Federal Judicial Center 1991)
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[Eaglin, Sentencing]. In the absence of a recommendation
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from the district court, however, the sentence will be served
in a federal prison and automatically run consecutively to
the unexpired state sentence. See United States v.
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Pungitore, 910 F.2d 1084, 1119 (3d Cir. 1990), cert. denied,
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500 U.S. 915 (1991); Eaglin, Sentencing at 7.3
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In Clemente's view, this legal anomaly brings his
case within a principle we have long recognized: that a plea
agreement will be set aside if induced by a prosecutor's
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2. As applied to crimes committed prior to November 1, 1987,
4082(a), has been construed to mean that the Attorney
General has the sole authority to designate the place of
confinement. See, e.g., United States v. Williams, 651 F.2d
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644, 647 (9th Cir. 1981); United States v. Naas, 755 F.2d
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1133, 1137 (5th Cir. 1985); United States v. Huss, 520 F.2d
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598 (2d Cir. 1975); United States v. Janiec, 505 F.2d 983,
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987-88 (3d Cir. 1974), cert. denied, 420 U.S. 948 (1975);
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United States v. Herb, 436 F.2d 566, 567 (6th Cir. 1971).
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This authority was delegated to the Bureau of Prisons in 28
C.F.R. 0.96. Since 18 U.S.C. 3568 (1966) (repealed eff.
Nov. 1, 1987) prescribes that a sentence for such crimes
begins to run only when the person is "received" at the place
of confinement, designation of the state prison was usually
required to effect concurrency with an unexpired state
sentence.
3. The second prong of Clemente's argument, that the
sentencing court was also deprived of the power to impose a
consecutive sentence, has been rejected by the majority of
courts. See United States v. Hardesty, 958 F.2d 910, 913
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(9th Cir. 1992) (citations); Pungitore, 910 F.2d at 1119
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(same).
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promise to recommend a sentence that is "impossible of
fulfillment," as when it is "plainly contrary to law."
Correale v. United States, 479 F.2d 944, 946-47 (1st Cir.
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1973) (following Brady v. United States, 397 U.S. 742 (1970),
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and Santobello v. New York, 404 U.S. 257 (1971)); see also
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Bemis v. United States, 30 F.3d 220 (1st Cir. 1994); United
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States v. Kurkculer, 918 F.2d 295, 297-98 (1st Cir. 1990).
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We have never gone so far as to say, however, that "minor and
harmless slips" will void a plea bargain. Correale, 479 F.2d
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at 947; see also United States v. Tursi, 655 F.2d 26 (1st
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Cir. 1981).
We do not see an error here, and certainly no
"plain" error. Nothing in the plea agreement required the
prosecutor to recommend that the district court achieve
concurrency by a particular means, let alone an illegal, or
nonexistent mechanism. Had the court been persuaded by the
prosecutor's recommendation, there were available ample
lawful means for its fulfillment. See Eaglin, Sentencing at
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5-12 (flexible sentencing options for crimes committed prior
to November 1, 1987, include shortened terms, early parole
eligibility, suspended sentences, fines, and recommended
concurrent terms); see also House Report at 37-141, 1984
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U.S.C.C.A.N. 3220-324 (comparison with new sentencing laws).
Cooperation by other officials with a recommendation from the
court for a concurrent term is the norm, see Eaglin,
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Sentencing at 6; Nass, 755 F.2d at 1135, 1137; Williams, 651
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F.2d at 647 n.2; Janiec, 505 F.2d at 988; Herb, 436 F.2d at
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568; and there was no reason to doubt it in this case.
The availability of lawful means for achieving the
recommended result is what distinguishes this case from
Correale. In Correale, the prosecutor recommended a
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mechanism for effecting a concurrent sentence that was both
unlawful, (a minimum term greater than that allowed by law),
and illusory, because the state sentence was about to expire.
Although aware of the defect, the sentencing court did not
afford Correale an opportunity to withdraw his plea prior to
imposing a term of lawful length which did not achieve
concurrency. We decided that relief was required because,
"It is the defendant's rights that are being
violated when the plea agreement is broken or
meaningless. It is his waiver which must be
voluntary and knowing. He offers that waiver not
in exchange for the actual sentence or impact on
the judge, but for the prosecutor's statements in
court. If they are not adequate, the waiver is
ineffective."
Correale, 479 F.2d at 949.
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Clemente, however, got what he bargained for. The
prosecution vigorously recommended a concurrent sentence at a
time when the existing state sentence had many years to run.
The specific means for achieving concurrency was not broached
by either party because, after thoughtful consideration, the
court rejected the recommendation for lawful reasons that
were well within its discretion. Our cases do not require
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relief from a mistake that was not made, nor a remedy for
hypothetical non-cooperation with the court that has not
occurred. Cf. Bemis, 30 F.3d at 221 (considerations of
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remedy must await proof of a promise and its breach).
A review of the plea hearing transcript leaves no
doubt that Clemente's guilty plea in this regard was knowing,
intelligent and voluntary. The court warned Clemente in
strong terms of its inclination to impose a consecutive
sentence and recessed the plea hearing to permit him to
consult with his attorney prior to accepting his plea.
Clemente then chose to plead guilty after a full Rule 11
colloquy in which he acknowledged his understanding of the
court's warning and all other relevant matters. See Fed. R.
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Crim. P. 11.
Clemente argues that it was error for the district
court to resolve this 2255 motion without an evidentiary
hearing. However, a petitioner under 2255 bears the usual
burden of showing that his motion cannot be effectively
"heard" on the papers. See United States v. McGill, 11 F.3d
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223, 225-26 (1st Cir. 1993). The mainstay of his challenge,
above, did not require an evidentiary hearing because it
raised only an issue of law.
A hearing also was not required on the remaining
claims, discussed seriatim below, because each was invalid as
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a matter of law, or contradicted by the record. Id. at 225.
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1. There is no merit to Clemente's arguments that
1.
his counsel provided ineffective assistance, and the court
erred during the plea colloquy, by failing to advise Clemente
of the statutory details pertaining to concurrent and
consecutive sentences. Even if one, or both of them had a
duty to impart this information (which we doubt), the record
belies any plausible claim that Clemente would not have pled
guilty but for the omission, or that it resulted in a
miscarriage of justice. See Hill v. Lockhart, 474 U.S. 52,
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57-59 (1985) (to prevail on a claim of ineffective assistance
in a plea agreement petitioner must show that there is a
reasonable probability that, but for counsel's error, he
would not have pled guilty but would have insisted on going
to trial); United States v. Timmreck, 441 U.S. 780, 783
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(1979) (nonconstitutional error in a Rule 11 colloquy does
not provide a basis for relief under 2255 unless it amounts
to a complete miscarriage of justice or an omission
inconsistent with the rudimentary demands of fair procedure).
2. The record contradicts Clemente's claim that
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the court failed to warn him that he would not be permitted
to withdraw his plea if the court rejected the prosecution's
sentencing recommendation. Although the court did not use
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formulaic words, the court's repeated emphasis on the
invariable repercussions of a guilty plea, and the recess to
permit Clemente to consult with counsel about the court's
warnings, combined to leave no doubt about the finality of
the plea. Cf. United States v. Medina-Silverio, 30 F.3d 1
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(1st Cir. 1994) (Rule 11 is satisfied by substantial
compliance, courts are not required to follow a formula of
"magic words"). There was no fundamental defect in the plea
colloquy.
3. Clemente's allegation that he was misled during
3.
the plea hearing recess by prosecutorial pressures and
promises, is contradicted by the hearing transcript as well
as his own affidavit. His affidavit recites only that his
attorney told him during the recess that the prosecutor had
stated his "firm belief" that the judge would impose a
concurrent sentence after he heard of Clemente's cooperation
and testimony at trial. The transcript shows that when
Clemente returned to the hearing he swore under oath that no
additional promises had been made. See Bemis, 30 F.3d at
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222-23 (in the absence of unusual facts lending plausibility
to belated allegations, a defendant is bound by his or her
sworn representations in court disclaiming the existence of
additional promise).
Finally, Clemente was not entitled to the
appointment of counsel for this 2255 motion, see United
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States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993), cert.
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denied, 114 S. Ct. 1839 (1994), and his argument that the
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district judge should have recused himself from hearing the
motion is specious. See Panzardi-Alvarez v. United States,
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879 F.2d 975, 985 (1st Cir. 1989) (there is nothing per se
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wrong with the sentencing judge reviewing a 2255 petition),
cert. denied, 493 U.S. 1082 (1990); see also Liteky v. United
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States, 114 S. Ct. 1147, 1155 (1994) (a judge is not
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recusable because he has formed an opinion of the case based
on information acquired while presiding over it, unless his
opinion is so extreme as to display clear inability to render
fair judgment); McGill, 11 F.3d at 226 (a district judge may
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rely upon his memory of earlier proceedings in ruling on a
2255 motion).
Affirmed.
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