## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 14 1997 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant,

v. DONALD KEITH BLACKWELL, Defendant-Appellee. No. 96-8110 (D.C. No. 94-CR-105-B) (D. Wyo.)

Appeal from the United States District Court

for the District of Wyoming (D.C. No. 94-CR-105-B)
Patrick J. Crank, Assistant United States Attorney (David D. Freudenthal, United States Attorney, with him on the brief), Casper, Wy oming, for Plaintiff-Appellant. Steven A. Wuthrich, Sandy, Utah, for Defendant-Appe llee.

Before BALDOCK, BRORBY and BRISCOE , Circuit Judges.

BRORBY , Circuit Judge.

The government appeals the district court's October17, 1996 order, entered pursuant to 28 U.S.C. § 2255 (1994) (amended 1996), that vacated criminal-2-

defendant Donald Keith Blackwell's guilty plea and his previously imposed
sentence. See United States v. Blackwell , 944 F. Supp. 864 (D. Wyo. 1996). The district court primarily premised its order on the disparity between Mr. Blackwell's sentence and that of a co-conspirator, Shelly Cecala. See id. We reverse and remand.

I. FACTS On September 20, 1994, the grand jury for the Distr ict of Wyoming indicted Mr. Blackwell for conspiracy to possess wi th intent to distribute and conspiracy to distribute cocaine, in violation of 2 1 U.S.C. §§ 841 and 846 (1994), and possession with intent to distribute cocaine, i n violation of 21 U.S.C. § 841. On February 2, 1995, Mr. Blackwell pled guilty befo re the District Court for the District of Wyoming to the charge of conspiracy to possess with intent to distribute and to distribute eight ounces of cocain e. Based on the terms of Mr. Blackwell's plea agreement, the government filed a motion to dismiss the remaining counts against Mr. Blackwell and, to rewa rd Mr. Blackwell's cooperation with the government, a motion to grant Mr. Blackwell a three-level departure, thus reducing his sentencing guideline r ange from twenty-four to thirty months imprisonment to fifteen to twenty-one months

.-3-

On April 24, 1995, the district court granted the g overnment's motions and sentenced Mr. Blackwell to fifteen months incarceration, three years of supervised release, a $1,500 fine, and a $50 specia l assessment. At the sentencing hearing, the court asked whether Mr. Blackwell woul d have to be a witness in the prosecution of his supplier and co-conspirator, She lly Cecala, in the District of Utah. Ms. Cecala's prosecution in Utah was entirel y separate from Mr. Blackwell's prosecution in Wyoming. In response, t he government replied: Honestly, Your Honor, I am filling in for Mr. Cranktoday and let me have a moment, if I may. (Pause.) Your Honor, I'm told that she had originally entere d into a deal with the federal government in large measure due to Mr. Blackwell's assistance in coming forward and telling us what he knew about her involvement. I guess that deal is currently on the skids and we [ i.e. , referring to the United States Attorney's Office fo r the District of Utah] may need to go forward with trial, in which c ase he will be needed for testimony. At this point I guess it's fair to tell Your Honor that it's all up in the air.

On June 14, 1995, Mr. Blackwell filed a motion seek ing resentencing. He alleged that three days prior to his sentencing, un beknownst to either his attorneys or the United States Attorney's Office for the Dist rict of Wyoming, Ms. Cecala had pled guilty before the United States District C ourt for the District of Utah to distributing fifty-five ounces of cocaine. Mr. Bla ckwell further alleged the Utah1 The government does not contend Mr. Blackwell's a llegations regarding

Ms. Cecala's plea and sentence of probation are inc orrect.

2In our prior opinion, we refused to consider Mr. Blackwell's previous petition for resentencing as proceeding pursuant to § 2255. Blackwell , 81 F.3d at 947 n.1. We then noted Mr. Blackwell was free to s o proceed in the future. Id. -4- district court sentenced Ms. Cecala only to a term of probation, 1 and that in light of the lenient sentence imposed upon Ms. Cecala, wh o had a greater role in the conspiracy than did he, his sentence was unfair. T he Wyoming district court, relying on both its "inherent jurisdiction" to righ t injustices and Fed. R. Crim. P. 35, vacated Mr. Blackwell's original sentence and r esentenced him to three years probation, 250 hours of community service, and a $5 0 special assessment. The government appealed, and this court held the distri ct court lacked jurisdiction to resentence Mr. Blackwell. United States v. Blackwell , 81 F.3d 945, 949 (10th Cir. 1996). Accordingly, we reversed the district court 's resentencing of Mr. Blackwell and remanded to that court with instructi ons to reinstate the original sentence, id. , which the district court did on June 19, 1996.

Subsequent to our reversal, Mr. Blackwell filed the motion presently at issue, a Motion to Vacate, Set Aside, or Correct Se ntence under 28 U.S.C. § 2255. 2 In his pro se motion, Mr. Blackwell presented five arguments ass erting his sentence was invalid, of which the district cou rt addressed only three. Blackwell , 944 F. Supp. at 866-67. The contentions the court addressed were: (1)3 The contentions the district court did not addres s were (1) misinformation

supplied by the government at Mr. Blackwell's origi nal sentencing constituted a Bradyviolation, and (2) reimposing Mr. Blackwell's sent ence without credit for time served violated Mr. Blackwell's right against double jeopardy, as did the civil forfeiture of some of Mr. Blackwell's property. Blackwell , 944 F. Supp. at 867. -5- the disparity between Mr. Blackwell's and Ms. Cecal a's sentences justified relief; (2) the district court was misinformed at Mr. Blackwell's original sentencing as to the status of Ms. Cecala's case in Utah; and (3) Mr . Blackwell did not receive effective assistance of counsel from his trial coun sel, Mr. Keith Goody. 3 Id. at 867-69. Mr. Blackwell primarily based his ineffect ive assistance of counsel claim on Mr. Goody's failure to learn, prior to Mr. Blackwell's sentencing, of Ms. Cecala's plea and probation.

On October 11, 1996, the district court held a hear ing on Mr. Blackwell's § 2255 motion. At that hearing, the Assistant Unit ed States Attorney in charge of Mr. Blackwell's prosecution, Mr. Blackwell, and Mr. Goody all testified. The testimony focused on the Utah prosecution of Ms. Ce cala and the adequacy of Mr. Goody's representation of Mr. Blackwell. In regard to the latter matter, the district court asked Mr. Goody whether " in retrospect , do you think that on the day [Mr. Blackwell] was sentenced ... you should have contacted Utah just to double-check and find out what sentence [Ms. Cecala ] had gotten?" (Emphasis4The Assistant United States Attorney stated he wa s "shocked" to learn

Ms. Cecala received probation. Mr. Goody stated "i t never dawned on me under any circumstances that [Ms.] Cecala would ever get probation" and that "it was something ... I wouldn't have anticipated in a mill ion years." The court, too, stated it was shocked to hear Ms. Cecala received p robation. -6- added.) Mr. Goody responded "Well, with the benefit of 20/20 hindsight , I certainly should have checked." (Emphasis added.) Notably, the Assistant United States Attorney, Mr. Goody, and the court itself, a ll expressed amazement that the Utah district court sentenced Ms. Cecala only to pr obation. 4

On October 17, 1996, the district court issued the order that is the subject of the instant appeal. In that order, the districtcourt found all three above noted contentions were valid, and that each justified rel ief pursuant to 28 U.S.C. § 2255. Blackwell , 944 F. Supp. at 867-69. It then vacated both Mr. Blackwell's sentence and his guilty plea. The court then trans fered the matter to United States District Judge Downes of the District of Wyoming an d gave Mr. Blackwell sixty days to enter a plea before Judge Downes. Id. at 869-70. In examining the district court's § 2255 ruling, we review the distr ict court's legal rulings de novo and its factual findings for clear error. United States v. Cox , 83 F.3d 336, 338 (10th Cir. 1996).

II. Jurisdiction-7-

As a threshold matter, we address whether we have j urisdiction to hear this appeal. On December 9, 1996, this court issued a s how cause order requesting the parties to brief whether the district court's § 225 5 order was final and appealable. If the district court's order was a "final decision ," we have jurisdiction under 28 U.S.C. § 1291 (1994), which grants appellate courts jurisdiction to review final decisions of district courts. Final decisions are those that "'end[] the litigation on the merits and leave[] nothing for the court to do but execute the judgment.'" Van Cauwenberghe v. Biard, 486 U.S. 517, 521-22 (1988) (quoting Catlin v. United
States , 324 U.S. 229, 233 (1945)).

After review of the parties' briefs and further con sideration of the matter, we conclude the district court's § 2255 order was afinal decision over which we have appellate jurisdiction pursuant to § 1291. Th e district court vacated Mr. Blackwell's sentence and plea and transfered the matter to a different district judge for entry of a new plea. Blackwell , 944 F. Supp. at 869-70. Thus, in regards to the § 2255 action, nothing more remained to be done. The district court's disposition was akin to those cases in whic h a new trial is ordered upon the granting of a § 2255 motion; therefore, the lan guage of the Fifth Circuit is
apropos: [T]he § 2255 proceedings have ended with an order r equiring the Government, if it wishes to persist in an effort to punish [the5 The court based this finding on Ms. Cecala's stat us as Mr. Blackwell's

supplier, along with her admission of distributing fifty-five ounces of cocaine, in -8- defendant], to return to Square One and recommence its effort ab initio. A more final termination of the § 2255 act ion can scarcely be imagined; what possible further purpose could it se rve? We have jurisdiction. United States v. Dunham Concrete Prods., Inc. , 501 F.2d 80, 81-82 (5th Cir. 1974), cert. denied, 421 U.S. 930 (1975); accord United States v. Allen , 613 F.2d 1248, 1250-52 (3d Cir. 1980) (§ 2255 order granting new trial was final and appealable under § 1291). Cf. Sprosty v. Buchler , 79 F.3d 635, 645 (7th Cir.) (district court order granting a writ of habeas corpus is final and therefore appealable), cert. denied, 117 S. Ct. 150 (1996); Blazak v. Ricketts , 971 F.2d 1408, 1410-12 (9th Cir. 1992) (same); Young v. Herring , 777 F.2d 198, 201-02 (5th Cir. 1985) (same).

III. Vacation of Mr. Blackwell's Sentence

A. We first address the district court's reliance on t he "gross disparity" between Mr. Blackwell's and Ms. Cecala's sentences, as it is this perceived disparity that fundamentally drives the district co urt's overall disposition. Blackwell , 944 F. Supp. at 867-69. The district court noted Ms. Cecala was "much more heavily involved and culpable" than Mr. Blackwell. 5 Id. at 869.comparison to the eight ounces underlying Mr. Blackwell's conviction. See id. at

866-67, 869. -9- Relying on the general precept that "similar offend ers engaged in similar conduct should be sentenced equivalently," id. at 868 (citing United States v. Massey , 48 F.3d 1560, 1570 (10th Cir.), cert. denied, 115 S. Ct. 2628 (1995)), the court believed that because Mr. Blackwell was less culpab le than Ms. Cecala, he should not receive a greater sentence than she. The courtstated imposing a fifteenmonth prison sentence on Mr. Blackwell, while Ms. C ecala received only probation, "violate[d] basic notions of fairness" a nd was an "unconscionable result." Id. at 869. Accordingly, because "there [was] no expla nation that would justify such a disparity," the district court vacat ed Mr. Blackwell's sentence. Id.

We hold the disparity between Mr. Blackwell's and M s. Cecala's sentences standing alone is not adequate ground for the distr ict court's action. Every other circuit has held disparity between sentences of co- defendants or, as here, coconspirators, is not a proper basis for sentence re duction beyond the guideline minimum. United States v. Wogan , 938 F.2d 1446, 1448-49 (1st Cir.), cert. denied, 502 U.S. 969 (1991); United States v. Joyner , 924 F.2d 454, 461 (2d Cir. 1991); United States v. Higgins , 967 F.2d 841, 845 (3d Cir. 1992); United States v. Withers , 100 F.3d 1142, 1149 & n.3 (4th Cir. 1996), cert. denied, 117 S. Ct.-10-

1282 (1997); United States v. Pierce , 893 F.2d 669, 678 (5th Cir. 1990); United
States v. Romano , 970 F.2d 164, 167 (6th Cir. 1992); United States v. Dillard, 43 F.3d 299, 311 (7th Cir. 1994); United States v. Torres , 921 F.2d 196, 197 (8th Cir. 1990); United States v. Taylor , 991 F.2d 533, 536 (9th Cir.), cert. denied, 510 U.S. 858 (1993); United States v. Chotas , 968 F.2d 1193, 1197-98 (11th Cir. 1992); United States v. Williams , 980 F.2d 1463, 1467 (D.C. Cir. 1992). These circuits note that in enacting the sentencing guide lines Congress sought national uniformity in the sentencing of similar defendants for similar federal offenses, and reason that departing from a defendant's guidel ine range to equalize that defendant's sentence with one imposed on a co-defen dant or co-conspirator undermines the congressional objective by "creat[in g] a new and entirely unwarranted disparity between the defendant's sente nce and that of all similarly situated defendants throughout the country." Joyner , 924 F.2d at 460-61; accord United States v. Fonville , 5 F.3d 781, 783 (4th Cir. 1993), cert. denied, 511 U.S. 1086 (1994); Williams , 980 F.2d at 1467; Wogan , 938 F.2d at 1448-49.

We too have generally refused departures from the g uideline range premised on disparities between a defendant's sente nce and that of his codefendants or co-conspirators. In United States v. Jackson , 950 F.2d 633, 637-38 (10th Cir. 1991), we noted our rejection of attacks on sentences "'based solely on6Mr. Blackwell contends the rule announced in Jackson is erroneous and,

because the co-defendants there were not similarly situated, dicta. We see no error in Jackson . Further, the relevant language in Jackson is clearly not dicta. We stated "[b]ecause [Mr.] Jackson's claim [of impe rmissible disparity] is based solely on the lesser sentence imposed on his codefe ndant ... we must reject [his] claim." 950 F.2d at 637-38. Our subsequent refere nce to the differing conduct of Mr. Jackson and his co-defendants merely supported our prior statements; it did not render those statements dicta. See id. at 638. -11- [a] lesser sentence imposed on [a] codefendant.'" 6 (Quoting United States v. Trujillo , 906 F.2d 1456, 1465 (10th Cir.), cert. denied, 498 U.S. 962 (1990)). Subsequently, in United States v. Garza , 1 F.3d 1098 (10th Cir.), cert. denied, 510 U.S. 1018 (1993), we reversed a downward departure premised on the disparity between the guideline ranges of the defen dant and a co-defendant/coconspirator because the disparity was explicable fr om facts on the record. In so doing, we looked approvingly to cases from the Firs t and Second Circuits that rejected disparity between co-defendant or co-consp irator sentences as a grounds for sentence reduction. See id. at 1100-01 (citing Wogan , 938 F.2d 1446 (1st Cir.), cert. denied, 502 U.S. 969 (1991), and Joyner , 924 F.2d 454 (2d Cir. 1991)). See also United States v. Maden , 114 F.3d 155, 158-59 (10th Cir. 1997) (reversing a downward departure premised on a disparity between the defendant's sentence and that of a co-defendant because the dis parity was explicable by facts in the record), cert. denied, ___ S. Ct. ___, 1997 WL 434805 (U.S. Oct. 5, 1997 ) (No. 97-5356); United States v. Contreras , 108 F.3d 1255, 1270-71 (10th Cir.7In United States v. Sardin , 921 F.2d 1064, 1066-68 (10th Cir. 1990),

because of a significant disparity between the dist rict court's upward departure in sentencing the appellant and the upward departures the court accorded two of the appellant's co-defendants, we reversed for resenten cing of the appellant. The district court's sole basis for departing upward in sentencing the three codefendants was the quantity of drugs they distribut ed, which quantity was the same for each defendant. Id. at 1066-67. Nonetheless, although the basis for t he upward departures was identical, the district courtdeparted upward at least four years more in sentencing the appellant than it did in sentencing his co-defendants. Id. at 1066. Because the district court gave no expla nation for this disparity between departures premised on an identical fact, w e reversed the district court. Id. at 1067-68. We stated "[g]iven that the three def endants here were 'similar offenders' engaged in 'similar criminal conduct' wi th respect to the reason given for their upward departure, they should have receiv ed equivalent upward departures." Id. at 1067. Both the district court and, in his appellate brief , Mr. Blackwell relied on Sardin . However, whereas in Sardin the basis for the departure given all three co-defendants was identical, id. at 1066-67, here the record does not show Mr. Blackwell and Ms. Cecala to have been similarly sit uated. See infra

. Accordingly, Sardin is inapposite to the instant case. -12- 1997) (same), cert. denied, ___ S. Ct. ___, 1997 WL 336905 (U.S. Oct. 6, 1997 ) (No. 96-9286). We have also acknowledged the overr iding objective of the sentencing guidelines is the elimination of nationwide disparities, rather than disparities between individual cases. Id. at 1271 (citing Garza , 1 F.3d at 1100). 7

In the instant case, the district court did not simply depart downward from the guideline minimum of fifteen months incarcerati on, it vacated Mr. Blackwell's sentence. It did so because it knew of "no explanation that would justify [the] disparity" between Mr. Blackwell's guideline mandat ed minimum sentence and-13-

Ms. Cecala's sentence. Blackwell , 944 F. Supp. at 869. However, just because the district court knew of no explanation does not mean there was none.

It appears from the record that the district court' s knowledge of the Cecala proceedings in Utah was extremely limited. The pro secution of Ms. Cecala in the District of Utah was entirely separate from Mr. Bla ckwell's prosecution in Wyoming. At the hearing on Mr. Blackwell's § 2255 motion, the Assistant United States Attorney for the District of Wyoming who pro secuted Mr. Blackwell testified he had no information as to why Ms. Cecal a received probation. The record does not contain Ms. Cecala's presentence re port, which may or may not include a valid reason for her probation. The dist rict court had no knowledge of what facts may have been admitted in the presentenc e report. In fact, the only evidence in the record concerning Ms. Cecala's sent ence is the transcript of her sentencing hearing, and that transcript provides ve ry limited information.

Thus, the district court lacked the information nec essary to determine whether Ms. Cecala's sentence in an entirely separate prosecution warranted a downward departure for Mr. Blackwell. In other wor ds, the court simply could not fully evaluate whether Ms. Cecala and Mr. Blackwell were similarly situated offenders who engaged in similar conduct. In Garzawe stated "disparate-14-

sentences are allowed where the disparity is explic able by the facts on the record." 1 F.3d at 1101 (citation omitted). We no w expand on that statement, holding that where the record is insufficient to sh ow co-defendants or coconspirators were similarly situated offenders enga ged in similar conduct, a disparity between their sentences is not grounds fo r a downward departure from the minimum guideline range. A contrary presumptio n would be contrary to the congressional objective underlying the guidelines o f obtaining nationwide uniformity in sentencing. See Wogan , 938 F.3d at 1448-49. Accordingly, we hold the district court's vacation of Mr. Blackwell 's sentence on the grounds of what it termed an "unexplainable disparity" between his sentence and that of Ms. Cecala, when the district court had no knowledge of the factors underlying Ms. Cecala's sentence, was error.

B. We now address the district court's holding the gov ernment's failure to inform the court of Ms. Cecala's guilty plea and se ntence of probation at Mr. Blackwell's first sentencing hearing, on April 24, 1995, invalidated Mr. Blackwell's original sentence. Blackwell , 944 F. Supp. at 867-68. In its order vacating Mr. Blackwell's sentence and plea, the dis trict court stated the misinformation given it by the government regarding the status of Ms. Cecala's-15-

case resulted in an error of fact so fundamental th at it "rendered the ... sentencing proceeding irregular and invalid." Id. at 868 (citing United States v. Addonizio , 442 U.S. 178, 185-86 (1979)). More specifically, upon a reading of the district court's opinion, it is obvious the court was not pa rticularly troubled by the misinformation itself, but rather by what it believ ed to be an unjust discrepancy between Ms. Cecala's sentence and that imposed upon Mr. Blackwell. See id. "Had the Court been aware of the true status of the Cecala case [ i.e. , her sentence of probation], there is no doubt [Mr. Blackwell] wo uld have received a more lenient sentence." Id.

Under § 2255, federal courts have authority to vacate sentences "imposed in violation of the Constitution or laws of the United States," "in excess of the maximum authorized by law," "that the [sentencing] court was without jurisdiction to impose," "or ... otherwise subject to collateral attack." 28 U.S.C. § 2255. In the instant case, the district court fo und the asserted "fundamental error of fact" regarding Ms. Cecala's sentence rend ered Mr. Blackwell's original sentence subject to collateral attack. Blackwell , 944 F. Supp. at 867. Grounds for successful collateral attacks are limited far beyon d errors justifying reversal on direct appeal; "the remedy ... does not encompass a ll claimed errors in conviction and sentencing." Addonizio , 442 U.S. at 184. "[A]n error of law [or fact] do es-16-

not provide a basis for collateral attack unless th e claimed error constituted 'a fundamental defect which inherently results in a co mplete miscarriage of justice.'" Id. at 185 (quoting Hill v. United States , 368 U.S. 424, 428 (1962)). Accordingly, misinformation alone cannot constitute a fundamenta l defect. Only "misinformation of constitutional magnitude" is cog nizable under § 2255. See id. at 187; United States v. Sunrhodes , 831 F.2d 1537, 1542 (10th Cir. 1987).

The misinformation presented to the sentencing judg e concerning the status of Ms. Cecala's plea agreement simply does not rise to this level. The district court knew Mr. Blackwell had provided substantial a ssistance to the government, and that due in large part to Mr. Blackwell's coope ration with prosecutors Ms. Cecala had originally entered into a deal with the government. Accordingly, the district court granted the prosecution's motion to reward Mr. Blackwell's cooperation with a three-level departure. In addit ion, however, based on the prosecution's mistaken belief Ms. Cecala's original deal had fallen through and Mr. Blackwell may be called upon to testify at Ms. Cecala's trial, the sentencing judge said he would entertain a subsequent Rule 35 motion requesting a further sentence reduction if Mr. Blackwell testified against Ms. Cecala. Only l ater did the district court learn that in fact Ms. Cecala's plea agreement had not fallen through and Mr. Blackwell never had an opportunity to testify against her and-17-

thus satisfy the court's condition for a further se ntence reduction. Nevertheless, any suggestion the sentencing judge would have gran ted Mr. Blackwell a greater downward departure in the first instance if the cou rt had known Mr. Blackwell would have no further opportunity to assist the gov ernment is pure speculation and insufficient to invalidate the original sentenc ing proceeding on collateral attack.

The fact remains Mr. Blackwell's original sentence was within his guideline range; indeed, it was at the bottom of the range re flecting a three-level adjustment for acceptance of responsibility and a three-level departure for substantial assistance. Given that, we cannot find the misappr ehension under which the district court operated resulted in a "complete mis carriage of justice," even if, had the district court known of Ms. Cecala's sentence, it would have sentenced Mr. Blackwell merely to a term of parole. See Addonizio , 442 U.S. at 187 ("there is no basis for enlarging the grounds for collateral attack to include claims based not on any objectively ascertainable error but on the f rustration of the subjective intent of the sentencing judge."); see also United States v. Townsend, 33 F.3d 1230, 1232 (10th Cir. 1994) (McKay, J., concurring) (interpreting Fed. R. Crim. P. 35, which allows courts to correct or reduce sen tences, not to allow a8Because effective assistance of counsel in crimin al cases is a

constitutional right, a deprivation thereof renders a resulting conviction and sentence subject to attack under § 2255. Frand v. United States , 301 F.2d 102, 103 (10th Cir. 1962). -18- sentencing court to later "change its mind about th e appropriateness of the sentence").

Moreover, as we have held the district court had no authority to further depart downward on the basis of insufficient inform ation to explain the perceived disparity, Mr. Blackwell's argument that the misinf ormation somehow curtailed the sentencing judge's discretion and that he there fore was denied the benefit of his plea bargain is unavailing. Accordingly, we ho ld the government's failure to inform the district court of Ms. Cecala's probation is not a valid basis for collateral attack on Mr. Blackwell's sentence. Mr. Blackwell's sentence was not affected by the type of misinformation tht rendered the entire proceeding irregular and invalid. The sentence imposed on Mr. Blackwell was and is a lawful one. Therefore, the district court's vacation of Mr. Bla ckwell's sentence was error.

C. We now review the district court's final basis for its order, the asserted ineffective assistance of Keith Goody, Mr. Blackwel l's trial counsel. 8 Blackwell ,-19-

944 F. Supp. at 868. Mr. Blackwell asserted Mr. Go ody's failure to investigate the status of Ms. Cecala's case prior to Mr. Blackw ell's first sentencing hearing on April 24, 1995, rendered Mr. Goody's representationineffective. The court found that "[i]n general ... [Mr.] Goody complied with th e highest standards and duties of his profession in conducting [Mr.] Blackwell's d efense." Id. However, it "reluctantly" found Mr. Goody's failure to investig ate and discover the status of Ms. Cecala's case prior to Mr. Blackwell's sentenci ng hearing rendered Mr. Goody's representation ineffective. Id. The court based its finding on Mr. Goody's admission at the § 2255 hearing that "he sh ould have contacted Utah prior to the April 24, 1995, sentencing hearing to discover the status of [Ms.] Cecala." Id. The district court's finding of ineffective assista nce of counsel presents a mixed question of fact and law we review de novo , although we accept the district court's factual findings unless clearl y erroneous. United States v.
Carr , 80 F.3d 413, 417 (10th Cir. 1996).

In Strickland v. Washington , 466 U.S. 668 (1984), the Supreme Court established a two-pronged test for evaluating claim s of ineffective assistance of counsel. To prevail under that test, Mr. Blackwell must show both (1) Mr. Goody's performance was deficient and (2) that defi ciency prejudiced him. Strickland, 466 U.S. at 687; Gillette v. Tansy , 17 F.3d 308, 310 (10th Cir. 1994).-20-

Mr. Blackwell can satisfy the first prong by showin g Mr. Goody's conduct was not "within the wide range of competence demanded of attorneys in criminal cases."
Carr , 80 F.3d at 417; Gillette , 17 F.3d at 310. "'The proper standard for measuring attorney performance is reasonably effect ive assistance.'" Gillette , 17 F.3d at 310-11 (quoting Laycock v. New Mexico , 880 F.2d 1184, 1187 (10th Cir. 1989)). Judicial scrutiny of the adequacy of attor ney performance must be strongly deferential: "[A] court must indulge a st rong presumption that counsel's conduct falls within the wide range of reasonable p rofessional assistance." Strickland, 466 U.S. at 689. Moreover, the reasonableness of the challenged conduct must be evaluated from counsel's perspectiv e at the time of the alleged error; "every effort should be made to 'eliminate t he distorting effects of hindsight.'" Edens v. Hannigan , 87 F.3d 1109, 1114 (10th Cir. 1996) (quoting Strickland, 466 U.S. at 689)); accord Kimmelman v. Morrison , 477 U.S. 365, 381 (1986).

We hold Mr. Goody's failure to investigate and disc over Ms. Cecala's sentence of probation did not render his representation ineffective. It is true that "counsel has a duty to make reasonable investigatio ns." Strickland, 466 U.S. at 691. However, we assess the reasonableness of "a p articular decision not to investigate ... for reasonableness in all the circu mstances, applying a heavy-21-

measure of deference to counsel's judgments." Id. Although Mr. Goody stated he should have checked on Ms. Cecala's case prior to M r. Blackwell's sentencing, he explicitly made that statement "with the benefit of 20/20 hindsight." Hindsight does not weigh into the evaluation of the reasonabl eness or adequacy of Mr. Goody's actions. Strickland, 466 U.S. at 689; Edens , 87 F.3d at 1114. The utter surprise exhibited by the attorneys and judge most familiar with Mr. Blackwell's case upon learning of Ms. Cecala's probation shows Mr. Goody's failure to inquire into the Utah prosecution, viewed from his perspect ive at the time of Mr. Blackwell's sentencing, was not unreasonable or rem oved from "the wide range of reasonable professional assistance." See Strickland, 466 U.S. at 689, 691. Furthermore, given our Tenth Circuit cases generall y holding sentence disparities between co-defendants or co-conspirators cannot pre mise a downward departure,
see supra , a reasonable attorney would likely have placed li ttle urgency on inquiring into the outcome of the independent Utah prosecution of Ms. Cecala, presuming that information would have been largely immaterial to Mr. Blackwell's sentencing. This is particularly notew orthy given the substantial deference we must accord Mr. Goody. See Strickland, 466 U.S. at 689, 691. Lastly, nowhere did the district court set forth oreven address the standard of what constitutes adequate representation; nor does the record contain any-22-

evidence, aside from Mr. Goody's retrospective stat ement, that Mr. Goody's representation did not meet that standard.

Accordingly, we hold Mr. Goody's representation of Mr. Blackwell was not deficient. Because we so hold, we need not address whether Mr. Goody's failure to inquire into Ms. Cecala's status prejudiced Mr. Blackwell. See Strickland, 466 U.S. at 697 ("there is no reason for a court decidi ng an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one."); Carr , 80 F.3d at 418 (same). Because Mr. Goody's representation was not deficient, and there fore not ineffective, the district court's vacation of Mr. Blackwell's senten ce on the grounds of ineffective assistance of counsel was error.

IV. Vacation of Mr. Blackwell's Guilty Plea Lastly, we consider the district court's vacation o f Mr. Blackwell's guilty plea. In his § 2255 motion, Mr. Blackwell asserted his plea "was unlawfully induced, in that the plea was supposed to be one wh ich the judge was free to accept or reject the prosecutor's recommendations a nd be at liberty to impose further downward departure if he felt same was appr opriate." Notably, however, Mr. Blackwell did not request the court to vacate h is plea, nor does he appear to-23-

have expanded on this claim at any time since his § 2255 motion. Nevertheless, the district court, in addition to vacating Mr. Bla ckwell's sentence, sua sponte vacated his plea, without providing any explanation or basis for the latter action. See Blackwell , 944 F. Supp. at 869. Of course, the apparent inf erence is that the court predicated its vacation of Mr. Blackwell's pl ea on the same three bases that underlay its vacation of Mr. Blackwell's sentence. Review of the district court's initial oral ruling at the close of the § 2255 hear ing supports this inference. Although there too the court fails to clearly state the basis for its vacation of Mr. Blackwell's plea, the court implicitly premises that action on the disparity between Mr. Blackwell and Ms. Cecala's sentences an d its finding Mr. Goody's representation was inadequate.

After sentencing, a guilty plea may be vacated or w ithdrawn "only to prevent manifest injustice." United States v. Gines , 964 F.2d 972, 979 (10th Cir. 1992) (citing advisory comm. note to Fed. R. Crim. P. 32(d), now codified as Fed. R. Crim. P. 32(e)), cert. denied, 506 U.S. 1069 (1993); United States v. Ruiz-del Valle , 8 F.3d 98, 103 (1st Cir. 1993); United States v. Davis , 954 F.2d 182, 184 (4th Cir. 1992). Cf. United States v. Coscarelli , 105 F.3d 984, 990-91 (5th Cir. 1997) (appellate court sua sponte vacated guilty plea upon finding plea was result of "plain error" affecting "the fairness, integrity or public reputation of judicial-24-

proceedings"); United States v. Todaro , 982 F.2d 1025, 1028 (6th Cir.) (defendant seeking to withdraw guilty plea must show "'a funda mental defect which inherently results in a complete miscarriage of jus tice' or 'an omission inconsistent with the rudimentary demands of fair p rocedure'" (quoting Fed. R. Crim. P. 32(d), 1983 advisory comm. note)), cert. denied, 408 U.S. 943 (1993); United States v. Hoskins , 910 F.2d 309, 311 (5th Cir. 1990) (same). See also Fed. R. Crim. P. 32(d), 1983 advisory comm. note (noting some authority holds the two standards cited above are "indistinguishable"). Th e district court made no findings regarding the existence of a "manifest inj ustice" necessitating vacation of Mr. Blackwell's plea. See Blackwell , 944 F. Supp. 864.

Upon review of the record, we find no manifest inju stice warranting vacation of Mr. Blackwell's guilty plea, and theref ore hold the district court's vacation of Mr. Blackwell's plea to have been error . Neither the disparity between Mr. Blackwell and Ms. Cecala's sentences no r the misapprehension under which the district court operated in sentencing Mr. Blackwell warranted vacation of Mr. Blackwell's sentence; thus, they could not h ave created a manifest injustice justifying vacation of his guilty plea. Similarly, because Mr. Goody's representation of Mr. Blackwell was not inadequate, no manifest injustice could have resulted therefrom.-25-

Furthermore, even assuming Mr. Goody's representati on was inadequate, and that the misapprehension under which the distri ct court operated at Mr. Blackwell's original sentencing hearing and the dis parity between Mr. Blackwell and Ms. Cecala's sentence justified vacation of Mr. Blackwell's sentence, those problems still would not have created a manifest in justice warranting vacation of Mr. Blackwell's guilty plea. Those matters arose at Mr. Blackwell's sentencing on April 24, 1995; he entered his plea on February 2, 1995, almost three months earlier. Thus, they could have had no impact on th e validity of his plea, which Mr. Blackwell does not assert was not knowing and v oluntary. Moreover, we note vacation of Mr. Blackwell's plea may itself have prejudiced Mr. Blackwell. Because the government's dismissal of other counts against Mr. Blackwell and its requests for downward sentencing departures were part of Mr. Blackwell's plea agreement, vacation of Mr. Blackwell's plea may wel l prevent Mr. Blackwell from receiving those benefits during subsequent proceedi ngs.

Finally, contrary to Mr. Blackwell's assertion, und er the sentencing guidelines district courts never have unfettered di scretion to depart downward. See Koon v. United States , ___ U.S. ___, 116 S. Ct. 2035, 2045 (1996) (analy zing when departures are allowable). Thus, the plea agr eement was neither breached nor "unlawfully induced."9Although the district court now feels its origina l sentence of Mr.

Blackwell was unjust, the district court's subjecti ve opinion of justice and fair play do not allow it to evade the requirements of t he sentencing guidelines. See Wogan , 938 F.2d at 1449 ("While we understand that the c ourt below was motivated by a desire to bring about what it foresaw as a fairer result, all things considered, the principles upon which the guideline s rest cannot 'be adulterated by a judge's personal sense of inequity, no matter how well-intentioned the judge may be.'") (quoting United States v. Norflett , 922 F.2d 50, 54 (1st Cir. 1990)). -26- Because we find the district court's reasons for va cating Mr. Blackwell's sentence and plea pursuant to 28 U.S.C. § 2255 were invalid, we REVERSE and
REMAND with instructions to reinstate Mr. Blackwell's gui lty plea and original
sentence. 996-8110, United States v. Blackwell

Briscoe, Circuit Judge, concurring and dissenting: I agree with the majority that the district court e rred in vacating defendant Blackwell's guilty plea. I disagree, however, with the majority's reversal of the district court's order vacating Blackwell's sentenc e. I would affirm vacation of Blackwell's sentence and remand for resentencing.
District court’s reliance on misinformation at time of sentencing In his § 2255 motion, Blackwell argued his sentence was invalid because, at the time it was imposed, the district court had bee n misinformed about the status of codefendant Cecala’s case. Specifically, Blackw ell noted the prosecutor misinformed the court that Cecala’s case was likely to go to trial when, in fact, Cecala had pled guilty and received a sentence of p robation. In reviewing and granting Blackwell’s § 2255 motion, the court focus ed exclusively (and mistakenly) on the disparity between the sentence C ecala received and the sentence originally imposed on Blackwell. In so do ing, the court overlooked the fact that its original sentencing decision was impa cted by its belief that Cecala’s case was proceeding to trial, and its corresponding belief that Blackwell had not yet given the full measure of his cooperation to th e government. As outlined below, it is precisely those grounds that justify v acation of Blackwell’s original sentence and entitle him to resentencing based upon correct information. An error in sentencing can provide the basis for a collateral attack under-2-

§ 2255 only if it is an error “of the most fundamen tal character, that is, such as rendered the proceeding itself irregular and invali d.” United States v. Addonizio , 442 U.S. 178, 186 (1979). Although research has no t produced any cases that directly address how to determine when misinformati on satisfies this “fundamental character” test, there are several cas es which hold (in the context of § 2255 proceedings) that a sentence must be set asi de if the defendant can show the challenged information was inaccurate and the s entencing court relied on the misinformation in imposing the sentence. See United States v. Kovic , 830 F.2d 680, 685 (7th Cir. 1987); Jones v. United States , 783 F.2d 1477, 1480 (9th Cir. 1986); United States v. Polselli , 747 F.2d 356, 358 (6th Cir. 1984); United States
v. Brown , 715 F.2d 387, 389 (8th Cir. 1983); see also United States v. Larson , 112 F.3d 600, 605-06 (2d Cir. 1997) (sentencing cou rt may not rely on misinformation in imposing sentence); United States v. Pless , 982 F.2d 1118, 1127 (7th Cir. 1992) (due process entitles defendan t to fair sentencing procedures, especially right to be sentenced on basis of accurate information); United States v. Barnhart , 980 F.2d 219, 225 (3d Cir. 1992) (sentence based upon misinformation violates defendant’s due process rig hts if misinformation is of constitutional magnitude and has been given specifi c consideration by sentencing judge); United States v. Silverman , 976 F.2d 1502, 1508 (6th Cir. 1992) (en banc) (sentence may not be imposed on basis of mate rial misinformation); United-3-

States v. Helton , 975 F.2d 430, 434 (7th Cir. 1992) (sentence will be vacated only if defendant shows misinformation was provided to s entencing court and sentencing court relied on misinformation in determ ining sentence); United States v. Johnson , 911 F.2d 1394, 1402 (10th Cir. 1990) (during sent encing, district court may not rely on misinformation of constitutio nal magnitude); United States v. Sunrhodes , 831 F.2d 1537, 1542 (10th Cir. 1987) (“Due proces s insures that a defendant will not be sentenced on the basis of ‘mi sinformation of a constitutional magnitude.’”). Based upon these cas es, I believe it is logical to conclude the “fundamental character” test is met if defendant can satisfy both of the above-referenced prongs (i.e., the information was false and was relied upon by the district court in imposing sentence). As applied here, Blackwell can easily satisfy this two-prong test. First, both Blackwell and the government agree the information provided to the district court concerning the status of Cecala’s case was in accurate. Second, it is apparent from reviewing the record on appeal that t he misinformation affected the original sentence imposed by the district court. A t the original sentencing hearing, the court sentenced Blackwell to a term of imprisonment of fifteen months, but expressly indicated it would entertain a subsequent Rule 35 motion after Blackwell fulfilled his responsibilities to t he government by testifying against Cecala:-4-

There is one other thing that I didn’t tell you. I ’m a great believer in the carrot-and-stick approach. You’ve got some coo perating yet to do with the United States, and if you cooperate further, and that means testifying in court in Salt Lake City againstShelly [Cecala], it isn’t going to be pleasant, but if you do it, you c an come back to me, you need to file your Rule 35 motion, and I’ll cons ider a further reduction. App. I, Doc. 44 (exhibit). Based upon these statem ents, I believe it is reasonable to conclude the court intended to reevaluate the si gnificance and usefulness of Blackwell’s assistance, and possibly lower his sent ence, after completion of Cecala’s case. See Fed. R. Crim. P. 35(b) (allowing sentencing court to “reduce a sentence to reflect a defendant’s subsequent, subst antial assistance in the investigation or prosecution of another person who has committed an offense”). From these statements, one could also argue the cou rt wanted to impose a lower sentence at the time of sentencing, but withheld th e lower sentence as an anticipated reward to Blackwell for his future coop eration in the prosecution of Cecala's case. Although the government contends the district courtcould not have imposed a lower sentence had it been privy to accur ate information concerning the status of Cecala’s case, this is incorrect. Pr ior to the initial sentencing, and in accordance with the terms of the plea agreement, th e government filed a motion pursuant to U.S.S.G. § 5K1.1 asking the court to re duce Blackwell’s sentence because of his substantial assistance to the govern ment. Section 5K1.1 gives a1 Section 5K1.1 clearly implies the government’s mo tion for downward

departure is supposed to evaluate assistance render ed by the defendant. In turn, the district court is directed to give “[s]ubstanti al weight . . . to the government’s evaluation of the extent of the defendant’s assista nce.” Commentary Note 2. In this case, I question how the government’s motion c ould have properly and sufficiently evaluated the assistance rendered by B lackwell when it was unknown to the prosecutor that Cecala had pled guilty. Not ably, I find no indication in the record that the government ever supplemented its mo tion to accurately reflect the outcome of Cecala’s case. Arguably, by indicating it would entertain a Rule 35 motion, the court recognized it could not fully eva luate the extent and usefulness of Blackwell’s assistance until after completion of Cecala’s case. -5- district court substantial discretion to depart dow nward from the guidelines after considering a nonexhaustive list of relevant factor s including the “significance and usefulness” of the defendant’s assistance. The extent of a departure under § 5K1.1 is within the sentencing court’s sound disc retion. United States v. Wills , 35 F.3d 1192, 1196-97 (7th Cir. 1994); United State s v. Johnson , 33 F.3d 8, 9 (5th Cir. 1994) (sentencing court is free to grant departure greater than recommended by government). Here, because the district court was informed that Cecala’s case was still pending and was likely to go to trial 1 , the district court did not know that Cecala: (1) had entered into a plea agreement, (2) apparent ly agreed to cooperate with and provide information to the government, and (3) rece ived a sentence of probation. For the reasons outlined in the majority opinion, t he third factor was clearly irrelevant to Blackwell’s sentencing. However, the remaining two factors could-6-

have legitimately affected the sentence imposed on Blackwell, irrespective of the sentence that Cecala received. Specifically, in de ciding how far to depart under § 5K1.1, the court could have considered the fact t hat, because of Blackwell’s assistance and willingness to testify, Cecala enter ed into a plea agreement and agreed to testify against people even higher up in the drug organization. Stated differently, the court could have reasonably conclu ded Blackwell’s assistance was more significant and useful than if Cecala had not pled guilty and agreed to assist the government. Because Blackwell was sentenced on the basis of mat erial misinformation, he is entitled to have his sentence vacated and rec eive a new sentencing hearing.

Ineffective assistance of counsel at time of sentencing Because I conclude Cecala’s decision to plead guilty and cooperate with the government could have reasonably impacted the distr ict court’s sentencing decision with respect to Blackwell, I further concl ude failure of Blackwell’s counsel to investigate and discover the outcome of Cecala’s case was deficient and prejudicial to Blackwell. See Strickland v. Washington , 466 U.S. 668 (1984); Brewer v. Reynolds , 51 F.3d 1519 (10th Cir. 1995), cert. denied , 116 S.Ct. 936 (1996).-7- Conclusion I concur in part and dissent in part. I concur in reversing the district court's vacation of Blackwell's guilty plea, but dissent fr om the majority's reversal of the district court's vacation of Blackwell's sentence. I would affirm the district court's order vacating Blackwell's sentence and rem and this matter for resentencing consistent with the original plea agre ement.