Date: 05-04-2015

Case Style: United States of America v. Robert T. McAllister

Case Number: 15-1015

Judge: Robert E. Bacharach

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Colorado (Denver County)

Plaintiff's Attorney: Christine E. Kenney and Richard Lee Hathaway

Defendant's Attorney: Lisabeth Castle, Kenneth L. Cunniff, John Jenab, Forrest Lewis and Pat Collins for Robert T. McAllister

Sol Wisenberg for Richard C. Nisewonger

Kathy Stimson for Elizabeth Whitney

Jeff Paglinca for Shannon Neiswonger

Description: Mr. Robert McAllister was an attorney charged with conspiracy, wire
fraud, and bankruptcy fraud. He and the prosecutors entered a plea
agreement, stipulating to certain facts. In the plea agreement, the
government agreed not to take any positions inconsistent with the
stipulated facts. Based on this agreement, Mr. McAllister pleaded guilty.
At sentencing, the government recommended a stiff sentence in part
because Mr. McAllister had engaged in a “crime spree” and violated court
orders issued by Judge Limbaugh (a federal district judge), Judge Arguello
(a federal district judge), Judge Brooks (a bankruptcy judge), and
FILED
United States Court of Appeals
Tenth Circuit
May 4, 2015
Elisabeth A. Shumaker
Clerk of Court
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Judge Munsinger (a state district judge). In Mr. McAllister’s view, the
government’s argument at sentencing constituted a breach of the plea
agreement and defense counsel should have objected. The district court
ultimately sentenced Mr. McAllister to concurrent prison terms of 78 and
60 months.
Mr. McAllister sought vacatur of the conviction under 28 U.S.C.
§ 2255, and the federal district court denied relief. With this ruling,
Mr. McAllister seeks to appeal on grounds that (1) the prosecutor breached
the plea agreement, (2) defense counsel was ineffective in failing to object,
and (3) the district court erred in imposing the sentence. To appeal, Mr.
McAllister needs a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B)
(2012). We decline to issue the certificate and dismiss the appeal.
I. Standard for a Certificate of Appealability
We can issue the certificate of appealability only if Mr. McAllister
has made “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2) (2012). This showing has been made only if reasonable
jurists could find the issue debatable. Slack v. McDaniel, 529 U.S. 473,
483-84 (2000).
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II. Breach of the Plea Agreement
In urging a breach of the plea agreement, Mr. McAllister argues that
the government should not have said he had engaged in a “crime spree” and
violated court orders by Judges Limbaugh, Arguello, Brooks, and
Munsinger. No reasonable jurist could credit these arguments.
The plea agreement expressly allowed the parties to present the
district court with additional facts relevant to sentencing. Plea Agreement
at 4. The only limitation was that the additional facts could not contradict
the stipulated facts. Id. at 4-5.
Mr. McAllister stipulated that he had participated in a five-year
conspiracy and a scheme to embezzle funds. The government referred to
this five-year scheme as a “crime spree” and repeated some of the
conclusions reached by the probation department. Government’s Resp. to
Def’s Mot. to Stay Surrender at 2-6. The government’s characterization as
a “crime spree” did not conflict with any of the stipulated facts.
In the presentence report, the probation department stated that
Mr. McAllister had perpetrated the scheme “to circumvent” orders issued
by Judges Limbaugh, Arguello, Brooks, and Munsinger. Presentence
Report at 7, ¶ 22. Mr. McAllister does not (and cannot) challenge the
statements in the presentence report, for he has confined his claim to
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prosecutorial misconduct and the probation department was not part of the
prosecution.1 Instead, Mr. McAllister alleges prosecutorial misconduct
based on the government’s repetition of what the probation department had
said about violations of court orders.
In repeating the probation department’s conclusions, the government
did not mention any orders issued by Judge Brooks. Instead, the
government focused on the orders by Judges Limbaugh, Arguello, and
Munsinger. But, there is nothing in the plea agreement that would have
prohibited the government from urging a violation of orders issued by
Judges Limbaugh, Arguello, or Munsinger. See, e.g., United States v.
Noriega, 760 F.3d 908, 911 (8th Cir. 2014) (holding that the government’s
introduction of additional evidence at sentencing did not breach the plea
agreement because there was no provision limiting the scope of relevant
conduct or defining the defendant’s role in the offense); United States v.
Lococo, 511 F.3d 956, 959 (9th Cir. 2007) (per curiam) (stating that when
the plea agreement reserved the right of the government to supplement the
stipulated facts, its offer of additional evidence at sentencing did not
1 In United States v. Easterling, we held that a plea agreement cannot
restrict the court’s access to relevant information. 921 F.2d 1073, 1079-80
(10th Cir. 1990). We explained that even though a plea agreement might
prevent the prosecutor from supplying additional information to the court,
the probation officer would remain free to supply additional information
within the parameters of the sentencing guidelines. Id. at 1080.
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constitute a breach of the plea agreement), amended, 514 F.3d 860 (9th
Cir. 2008) (per curiam).
Mr. McAllister admits he violated the “spirit” of Judge Limbaugh’s
orders. Sent. Tr. at 26. But Mr. McAllister complains that he did not admit
intentional violation of Judge Limbaugh’s orders. This complaint is invalid
because Mr. Allister does not point to a conflict with a stipulated fact.
Stipulations about Judge Munsinger’s order also appeared in the plea
agreement. There the parties stipulated to three facts:
1. Judge Munsinger had frozen all assets held by Mr. Terry
Vickery (a client of Mr. McAllister’s),
2. Mr. Vickery had transferred $100,000 to Mr. McAllister in
violation of the freeze order, and
3. Mr. McAllister, “fully aware of this freeze order,” had
transferred $80,300 out of these funds to Ms. Shannon
Neiswonger (a client of Mr. McAllister’s).
Plea Agreement at 6-7.
In its sentencing brief, the government referred to these stipulated
facts, saying:
1. Judge Munsinger had ordered surrender of Mr. Vickery’s
assets,
2. Mr. Vickery had transferred $100,000 to Mr. McAllister, and
3. Mr. McAllister, fully aware of the freeze order, had transferred
$80,300 of these funds to the Neiswongers.
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Mr. McAllister says why he regards the government’s statement as
inaccurate,2 but he does not say how it conflicts with the stipulated facts.
No conflict is readily apparent, for the government’s recitation appears to
simply repeat the three facts stipulated in the plea agreement.
Judge Arguello’s order is not mentioned in the plea agreement. But
the probation department discusses this order, and the government repeated
five of the probation department’s conclusions about Judge Arguello’s
order:
2 Mr. McAllister argues that the government’s recitation was
inaccurate because
1. Judge Munsinger’s freeze order applied only to funds
transferred from the partnership accounts to Mr. Vickery’s
wife since December 2009 (rather than to all of the
Vickery assets), and
2. the $100,000 payment was for legal services and did not violate
the order.
The first argument flatly contradicts the stipulations in the plea agreement.
There, Mr. McAllister agreed that “[Judge] Munsinger had entered an order
that all assets and interests of Vickery were to be surrendered and held in
trust for the plaintiff in the action.” Plea Agreement at 7. The second
argument (that the $100,000 was for legal services) may be true; the
government never said anything to the contrary. But Mr. McAllister
admitted under oath that he had transferred the funds without
Mr. Vickery’s authorization or relief from the freeze order. Stipulation at
3-6, Colorado v. McAllister, No. 11-PDJ-48 (Colo. June 6, 2011). For these
actions, Mr. McAllister admitted (again under oath) that he had violated
Colorado’s ethical rules for attorneys. Id. at 3-4, 6.
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1. In 2009, the Securities and Exchange Commission had initiated
an enforcement action in the District of Colorado.
2. The assigned judge, Judge Arguello, had frozen all funds raised
from investors.
3. Mr. McAllister had appeared in court for all of the defendants.
4. Two days later, Judge Arguello had entered an order,
continuing the freeze on all funds.
5. The same day, one of the defendants had transferred $80,000 to
Mr. McAllister, who in turn transferred some of the money to
his son, who in turn transferred the money to Ms. Neiswonger.
Government’s Resp. in Opp’n to Def’s Mot. to Stay Surrender at 5.
Mr. McAllister argues that these statements are inaccurate. But Mr.
McAllister does not say how these statements conflict with anything in the
plea agreement. Judge Arguello’s order is not even mentioned in that
document.
Without any information reflecting a conflict between the
government’s statements and the stipulated facts, no reasonable jurist
could credit Mr. McAllister’s argument involving breach of the plea
agreement.
III. Ineffective Assistance of Counsel
According to Mr. McAllister, his trial counsel was ineffective for
failing to object to the government’s arguments at sentencing. Again, no
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reasonable jurist could debate the validity of the ineffective assistance
claim.
For ineffective assistance, Mr. McAllister would need to show that
his trial counsel was deficient and that this deficiency resulted in
prejudice. United States v. Cruz, 774 F.3d 1279, 1284 (10th Cir. 2014). In
considering these elements, we focus on the actions of the trial attorney
and Mr. McAllister.
When the government alleged a crime spree and violation of court
orders, Mr. McAllister’s trial counsel contended that all of the relevant
conduct was in the plea agreement. Unhappy with the attorney’s argument,
Mr. McAllister filed his own brief. After Mr. McAllister and his attorney
objected, the district court stated that it would not consider violation of
orders issued by anyone other than Judge Limbaugh.
For a claim of ineffective assistance, Mr. McAllister would need to
show that his attorney should have done more and that if he had, the
sentence would probably have been lighter. See id. And, we have already
concluded that no reasonable jurist could find breach of the plea
agreement. Thus, further objections by trial counsel would have been
pointless. In these circumstances, no reasonable jurist could debate the
validity of Mr. McAllister’s ineffective assistance claim.
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IV. Errors by the District Court
Mr. McAllister casts blame not only on the government and his trial
counsel, but also on the district court. In Mr. McAllister’s view, the
district court erred by failing (1) to permit an evidentiary hearing on the
allegation involving violation of court orders, (2) to recommend
participation in a drug abuse program, and (3) to reassign the case to
another judge. No reasonable jurist would credit any of these arguments.
A. Evidentiary Hearing
Mr. McAllister argues that the district court should have conducted
an evidentiary hearing, where he could have disputed the government’s
allegation involving violation of court orders. Any reasonable jurist would
regard an evidentiary hearing as unnecessary.3
The district court stated that it would disregard the allegation
involving violation of orders by any judge other than Judge Limbaugh.4
3 In urging an evidentiary hearing, Mr. McAllister relies on Federal
Rule of Criminal Procedure 32. But we have held that judges cannot issue a
certificate of appealability on claims based on Rule 32. United States v.
Gordon, 172 F.3d 753, 755 (10th Cir. 1999).
4 Mr. McAllister questions this statement based on the sentencing
court’s reference to “court orders” in the plural. Appellant’s Br. at 4-5. But
the sentencing court never attributed these orders to Judges Arguello,
Brooks, or Munsinger. In making this argument, Mr. McAllister ignores the
context of the sentencing judge’s statement. The sentencing judge was
referring to violation of an order by Judge Limbaugh, and Mr. McAllister
had admitted violation of the spirit of Judge Limbaugh’s order.
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Thus, Mr. McAllister ultimately obtained all he could have obtained
through an evidentiary hearing: disregard of the government’s allegation
involving violation of orders issued by Judges Arguello, Brooks, and
Munsinger. In these circumstances, we decline to issue a certificate of
appealability on the denial of an evidentiary hearing.
B. Drug Treatment Program
Mr. McAllister also complains that the district court should have
recommended placement in a drug-abuse treatment program. But no
reasonable jurist could credit this claim.
Courts do not determine whether an inmate can participate in a drugabuse
program. See Tapia v. United States, __ U.S. __, 131 S. Ct. 2382,
2390-91 (2011) (stating that the Bureau of Prisons has plenary control over
placement and treatment programs for prisoners). That decision is made by
the Bureau of Prisons. Id.
Judges can make recommendations;5 and, for the sake of argument,
we can assume that the district court should have made this
recommendation for Mr. McAllister. Even with this assumption, however,
the claim would fail. This claim would require proof of a statutory error
resulting in a complete miscarriage of justice or an inconsistency with the
5 Tapia, 131 S. Ct. at 2390-91.
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rudimentary requirements of fair procedure. United States v. Talk, 158 F.3d
1064, 1069 (10th Cir. 1998), abrogated on other grounds as recognized in
United States v. Harms, 371 F.3d 1208, 1210 (10th Cir. 2004). No
reasonable jurist could regard the absence of a recommendation for drug
treatment as a complete miscarriage of justice or an inconsistency with the
rudimentary requirements of fair procedure.
C. Reassignment to a New Judge
Finally, Mr. McAllister argues that once the sentencing judge was
“tainted” by the government’s improper arguments, the case should have
been reassigned to a new judge. For this argument, Mr. McAllister relies
on United States v. Heredia, 768 F.3d 1220, 1236 (9th Cir. 2014). This
argument applies only if the government breached the plea agreement,6 and
we have concluded above that no reasonable jurist could find breach of the
plea agreement. As a result, we decline to issue a certificate of
appealability on the issue involving reassignment to another judge.
6 Heredia, 768 F.3d at 1236.

Outcome: No reasonable jurist could credit any of Mr. McAllister’s proposed
appellate arguments. As a result, we decline to issue a certificate of
appealability and dismiss the appeal.

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