On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 91-00570-20)
Before: Greenberg, Nygaard, and Noonan,* Circuit Judges
The opinion of the court was delivered by: Greenberg, Circuit Judge.
Submitted under Third Circuit LAR 34.1(a) October 8, 1998
(Filed: October 16, 1998)
*Honorable John T. Noonan, Jr., Senior Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.
Derrick Williams appeals from an "amended order" entered April 22, 1998, in this criminal case amending the judgment of sentence and conviction filed November 6, 1992. The germane proceedings leading to the appeal are as follows. On November 6, 1992, pursuant to a plea agreement, Williams pleaded guilty to an indictment charging him with conspiracy to possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 846. The plea agreement provided for a custodial sentence of 223 months to run concurrently with a Pennsylvania state sentence that Williams had been serving since June 1, 1989. Significantly, Williams was to receive credit against his federal sentence for all time served from June 1, 1989, in state custody. The agreement provided that if the district court did not accept the agreement, it would be null and void.
The court accepted the plea agreement and sentenced Williams on the same day he entered the guilty plea, November 6, 1992, to a 223-month custodial term to run concurrently with the state sentence with credit to be given for all time served on the state sentence from June 1, 1989. Nevertheless, on July 25, 1997, the Bureau of Prisons wrote separate but similar letters to Williams and the Assistant United States Attorney who had been present at the plea and sentencing, explaining that the Bureau could not give the credit the court had ordered because 18 U.S.C. § 3585(b) required it to deny the credit. *fn1
Williams, understandably, was not satisfied with the Bureau's position and consequently, on January 14, 1998, he filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. In his motion, Williams contended that the government breached the plea agreement because (1) the Bureau of Prisons did not run the sentence from June 1, 1989, as ordered by the court; and (2) the United States Attorney did not notify the Bureau of Prisons that it was required to honor the plea agreement as incorporated in the judgment of conviction and sentence. Moreover, Williams contended that the conviction was obtained and sentence imposed "in violation of [his] Sixth Amendment right to effective assistance of counsel." Williams' theory on this point was that if the Bureau of Prisons could not award credit against the sentence from June 1, 1989, "it follows that defense counsel was ineffective for persuading [him] to accept a guilty plea with no perceptible benefits." Williams asked the court to vacate his conviction and sentence, relief which, if granted, would have allowed him, at his option, either to stand trial or plead guilty again.
The government filed a response to the section 2255 motion contending that it had not breached the plea agreement. Rather, it attributed the sentencing problem Williams identified to a mistake in the November 6, 1992 judgment. Consequently, it proposed that the court amend the judgment to reflect the provisions of U.S.S.G. § 5G1.3(b), so that Williams would serve a total combined term of imprisonment of 223 months, with credit for all time served on the state sentence from June 1, 1989.
On April 21, 1998, the court entered an order partially granting Williams' motion under 28 U.S.C. § 2255. The court indicated that it would issue an amended judgment of conviction giving him credit for the time served on the state sentence from June 1, 1989, up to and including November 5, 1992. The order, however, denied Williams' motion to vacate his conviction because the court held that the government did not breach the plea agreement, as there merely had been a mistake in the judgment that prevented the intent of the parties and the court from being effectuated.
After next signing one order on April 21, 1998, amending the November 6, 1992 judgment of conviction and sentence, the court entered a superseding "amended order" on April 22, 1998, reducing Williams' term from 223 months to 181 months and 25 days, a sentence less than the lower end of the guideline range of 188 to 235 months that the court had calculated was applicable at the 1992 sentencing. The court provided that this reduced sentence would run concurrently, beginning November 6, 1992, with the undischarged portion of his state sentence. The court designated the state institution where Williams was serving the state sentence as the place for service of his federal sentence.
The amended order also provided that the federal sentence was not a departure from the guidelines because Williams was being credited for guidelines purposes under U.S.S.G. § 5G1.3(b) with 41 months and five days, the period from June 1, 1989, to November 5, 1992. It appears that the court entered the April 22, 1998 order amending the judgment in response to a letter the Assistant United States Attorney wrote the court on April 21, 1998, advising it of language that the Bureau of Prisons wished placed in the sentencing order for purposes of clarity. The April ...