NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No s. 10

- 1915 and 10

- 4482

_____________ UNITED STATES OF AMERICA

v. KENNETH HAMPTON,

Appellant

_____________ Appeal s fro m the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 2

- 09

- cr - 00193

- 001 and 2

- 02

- cr - 00473

- 002 ) District Judge s : Honorable R. Barclay Surrick and Honorable Petrese B. Tucker

_____________ Su bmitted Under Third Circuit LAR 34.1(a)

September 12, 2011 Before: RENDELL, JORDAN and BARRY, Circuit Judges

.

(Opinion Filed: September 13, 2011 )

_____________ OPINION OF THE COURT

_____________ RENDELL, Circuit Judge

. Kenneth Hampton pled guilty to conspiring to manufacture counterfeit currency in violation of 18 U.S.C. § 371 (Count 1), and to manufacturing counterfeit currency in violation of 18 U.S.C. § 471 (Count 2). He now brings a direct appeal contending that he should be allowed to withdraw his guilty plea and to vacate the result ing sentence2

because his counsel provided ineffective assistance by inaccurately predicting his Sentencing Guideline range. He further avers that the District Court erred in granting the government‟s request for an upward variance in imposing an above

- Guidelines sentence

. He separately contend s that the District Court erred in imposing a consecutive sentence for his violation of supervised release on a separat e counterfeiting conviction in addition to the sentence received for the instant offense s . 1 We will affirm

. I. Hampton had a checkered history of criminal activity, including charges involving drugs, guns, mail fraud, forgery and counterfeiting. He cons istently cooperated with prosecutors and recei ved lower sentences as a result. In 2007, Hampton was released from federal prison on an earlier counterfeiting conviction, and began a 3

- year term of supervised release. He was arrested again in February 200 9, and indicted for the instant substantive charge

– conspiracy to counterfeit and actual counterfeiting of currency by soaking genuine $5 bills in chemicals and then printing images of $50 or $100 bills onto
the bleached genuine paper. Hampton pled guilt y to Counts 1 and 2, and his written plea agreement included a waiver of appellate rights, which only permitted him to appeal a
sentence (1) exceeding a statutory maximum, (2) erroneous ly departing from the Guidelines, or (3) unreasonabl y varying above the Guidelines range. At the plea hearing, the District Court discussed the maximum punishments for Hampton‟s crimes, and he expressed his understanding that the maximum sentence for

1 Hampton‟s appeal of his counterfeiting convictions and s entence was consolidated with his separate appeal of the District Court‟s imposition of a consecutive sentence for violating his supervised release.3

the conspiracy was 5 years, and 20 years for the counterfeiting charge, fo r a total possible maximum sentence of 25 years. He represented that he had read the agreement and understood each paragraph, and the agreement set forth the maximum sentences mentioned. The Court also inquired of Hampton as to his understanding of the a ppellate waiver, and granted the government leave to further question Hampton about waiving his rights to appeal. The Court then inquired as to the Guideline implications from Hampton‟s counsel, who indicated his belief that Hampton would receive between 16 and 36 months . The Court expressed surprise at the low calculation and instructed Hampton that the Court would independently decide the appropriate Guideline range regardless of what Hampton‟s counsel advised. Subsequently, a t the sentencing hearing, both parties agreed to the PSR‟s Guideline determination of 51

- 63 months. This included an increase in his cr iminal hist ory points under U.S.S.G. § 4A1. 1(d) for committing this crime while on supervised release. The government then proposed an upward var iance based upon the view that Hampton‟s criminal history score did not account for the mitigated sentences that his prior cooperation had produced, and also based upon his repeated violations of the Court‟s trust in committing cr imes while on supervised r elease. The Court agreed, and imposed a sentence of 84 months and supervised release of 3 years. Hampton subsequently appeared for a hearing relating to his violation of his federal supervised release on the earlier counterfeiting conviction. The violati on was based on the conduct underlying the 2009 conviction and Hampton admitted to the violation. He urged, however, that this sentence should run concurrent with the sentence for the substantive offense because his violation of supervised release had alr eady been4

accounted for in his sentence for the new convictions. The government urged that Hampton‟s violation of his release constituted a separate offense from the substantive counterfeiting crime, meaning that a concurrent sentence would “leave this se cond wrong entirely unpunished.” (RB at 19.) The Court agreed that a concurrent sentence was inappropriate, and selected a consecutive punishment on the low end of the Guideline
range. II. Hampton initially argues that his attorney‟s performance in the D istrict Court violated his Sixth Amendment right to the effective assistance of counsel , and contends that we should allow him to withdraw his plea because it was not knowing and voluntary. Generally, we do not entertain ineffective assistance of counsel claims on direct appeal since “such claims frequently involve questions regarding conduct that occurred outside the purview of the district court and therefore can be resolved only after a factual development at an appropriate hearing.” United States v. McLaughlin , 386 F.3d 547, 555

- 56 (3d Cir. 2004) (quotations omitted). “We have, however, recognized a narrow exception to the rule that a defendant cannot argue on direct appeal that counsel ‟ s performance failed constitutional standards . . . where the re cord is sufficient to allow determination of ineffective assistance of counsel, [and] an evidentiary hearing to develop the facts is not needed.” Id. (quotations & punctuation omitted). Where “there are no findings of fact,” we conduct “our own examinat ion of the record” and “decide whether we can conclude as a matter of law that the record establishes the ineffectiveness of ... counsel.” United States v. Smack , 3 47 F.3d 533, 537 (3d Cir. 2003)

. Both parties5

urge that the recor d is sufficiently clear t o adjudicate his claim . Although this exception is narrow, we agree that we possess sufficient information to assess whether Hampton‟s counsel provided ineffective assistance by offering an inaccura te prediction of the guidelines even in the absence of a collateral 28 U.S.C. § 2255 proceeding. 2
W e addressed a similar challenge on the merits in the § 2255 context in United States v. Shedrick , and rejected the defendant‟s analogous argument that his counsel‟s prediction of the length of sentence was a “funda mental consideration” in deciding to plead guilty. 4 93 F.3d 292, 299 (3d Cir. 2007) (quotations omitted). We observed that “an erroneous sentencing prediction by counsel is not ineffective assistance of counsel where, as here, an adequate plea hearing wa s conducted.” Id. (citing United States v.
Jones , 336 F.3d 245, 254 (3d Cir. 2003) (counsel not ineffective for allegedly promising defendant a sentence of “no more than 71 months” where defendant was advised in open

court colloquy of potential maximum se ntence and there were no other promises regarding sentence) ) ; United States v. Mustafa , 238 F.3d 485, 492 (3d Cir. 2001) (“[A]ny alleged mis representations that [defendant‟ s] former counsel may have made regarding sentencing calculations were dispelled whe n [defendant] was informed in open court that there w ere no guarantee s as to sentence, and that the court could sentence him to the maximum.”) )

.

2 The government concedes that Hampton‟s instant appeal is not governed by the appellate waiver because suc h a waiver may not be enforced if the defendant should have been permitted to withdraw a guilty plea containing the waiver, (RB at 24 n.2 (citing United States v. Wilson , 429 F.3d 455, 458 (3d Cir. 2005)), and Hampton‟s challenge to the upward variance fal ls within an exception to the waiver provision.6

As in Shedrick , “ [Hampton‟s] counsel ‟ s conjectures to his client about sentencing are irrelevant where the writ ten plea agreement and in

- court guilty plea colloquy clearly establish the defendant ‟ s maximum potential exposure and the sentencing court's discretion.” Id. Hampton‟s signed plea agreement detailed the 25

- year maximum sentencing exposure, and he testifi ed that he read and understood these provis ions; he further affirmatively expressed in his plea colloquy his awareness that the conspiracy and counterfeiting charges were punishable by up to 5 and 20 years, respectively. The Court instructed Hampton as to its sentencing discretion and ability to impose the maximum sentence regardless of his counsel‟ s promises , and H ampton acknowledged this fact. As we stated in Mustafa , “all that the law requires is that the defendant be informed of his/her exposure in p leading guilty. The law does not require that a defendant be given a reasonably accurate „ best guess ‟ as to what his/her actual sentence will be; nor could it, given the vagaries and variables of each defendant ‟ s circumstances and offending behavior.” 23 8 F.3d at 492 n.5 (citation omitted). Here, “any erroneous sentencing information allegedly provided by defense counsel was corrected by the written plea agreement and the detailed in

- court plea colloquy, both of which accurately stated [Hampton‟s] potent ial sentence.” Shedrick , 493 F.3d at 300. Accordingly, we reject Hampton‟s claim of ineffective assistance of counsel and deny his request vacate his conviction and remand to the District Court so that he may withdraw his plea

. Hampton next avers that t he District Court‟s upward variance in his sentence was unreasonable since a lower sentence was sufficient to satisfy the 18 U.S.C. § 3553 factors and the District Court did not explain why a lower sentence was inadequate

. “We7

review a district court‟s s entencing order for reasonableness, under an abuse of discretion standard.” United States v. Christie , 624 F.3d 558, 574 (3d Cir. 2010). We apply “a deferential review of the record developed by the district court to determine whether the final sentence . . . was premised upon appropriate and judicious consideration of the relevant factors , ” and may not overturn a sentence merely because “we may ourselves have imposed a sentence different from that of the district court.” United States v. Schweitzer , 454 F.3d 197, 204 (3d Cir. 200 6).
Pursuant to 18 U.S.C. § 3553(a), a court “shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes” of , inter alia, promoting respect for the law, deterring criminal conduct, punishing an offense, and protecting the public from further crimes. In this regard, “the defendant bears the burden of proving that the sentence was unreasonable. ” United States v. Charles , 467 F.3d 828, 833 (3d Cir. 2006) (emphasis in original)

. Hampton contend s in conclusory fashion that the District Court could have sentenced him to a lesser term of imprisonment , but offers no substantive argument as to why the imposed sentence was actually unreasonable or “greater than necessary” to address the seriousness of Hampton‟s offenses and his undeniable recidivism

. The District Court adjudged Hampton‟s repetitive crimes “most serious” and factored in its decision his criminal history and prior experience receiving diminished sentences, finding the Guideline sentence insufficient to punish and deter. Hampton has failed to demonstrate the unreasonableness of this conclusion. Finally, Hampton contends that the District Court‟s imposition of a consecutive

– rather than concurrent

– sentence for violating his supervised release on the earlier8

counterfeiting charge constituted “double counting,” in that he received a higher sentence on the more recent offenses for violating the trust of the C ourt and also received a separate sentence for the actual violation of his release based upon the same recent offenses. We review a district court‟s revocation of a term of supervised release for abuse of discretion, United States v. Maloney , 513 F.3d 350, 354 (3d Cir. 2008), and review “a sentence imposed upon a revocation of supervis ed release” for “reasonableness with regard to the factors set forth in [§ 3553(a)],” United States v. Bungar , 478 F.3d 540, 542 (3d Cir. 2007). Under these standards, Hampton‟s argument fail s . Unlike the usual scenario where the same factor is counted multiple times for the same offense under separate Guidelines sections , the sentences imposed here related to two distinct offenses

– the recent conspiracy and counterfeiting offenses and the separate violation of his supervised release arising out of a pr evious offense. Hampton admitted to violating the terms of his supervised release and does not challenge this finding on appeal. At the same time, t he District Court noted that a concurrent sentence would in effect allow Hampton to avoid punishment for actually violating his supervised release , and Hampton has failed to prove that “no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” United States v. Tomko , 562 F.3 d 558 , 568 (3d Cir. 2009) (en banc). Moreover, u nder 18 U.S.C. § 3583(e)(3), a district court may revoke a term of supervised release when a defendant violates a condition of such release, and U.S.S.G. § 7B1.3(f) recommends that a “term of imprisonment im posed upon the revocation of . . . supervised9

release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving,” even when “the sentence of imprisonment being served resulted from the conduct that is the bas is of the revocation of . . . supervised release.” Accordingly, we find no error in the District Court‟s ruling

. III. For the foregoing reasons, we will affirm the District Court in all respects.