United States v. William Michael Furman, 110 F.3d 74, 10th Cir. (1997)

110 F.
3d 74
97 CJ C.A.R. 487
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
UNITED STATES of America, Plaintiff-Appellee,

v.
William Michael FURMAN, Defendant-Appellant.
No. 95-2217.
(D.C.No. CIV-95-266-MV)
United States Court of Appeals, Tenth Circuit.

April 2, 1997.
Before PORFILIO, ANDERSON, and BRISCOE, Circuit Judges.
1ORDER AND JUDGMENT*

2
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Defendant appeals from a district court order dismissing his "First Amendment
Rights Petition to Government to Redress Grievances; and Motion to Reduce
and/or Vacate Sentence under Rule 35 of Rules of Criminal Procedure, and/or
Rules 11, 32 and 33 of Rules of Criminal Procedure." Initially, this seventy-six
page pleading mixed a wide variety of heterogeneous claims. Shortly after
filing, however, defendant asked the district court to pare it down to a proper
Rule 35 motion by dismissing without prejudice all claims implicating such
other remedial mechanisms as 28 U.S.C. 2255, presumably to allow for
separate, unimpeded pursuit of the latter in a procedurally appropriate manner.
The district court granted that request, and then dismissed the resulting Rule 35
motion as meritless. We affirm for the reasons stated below.
4
Defendant was tried in the United States District Court for the District of New
Mexico on various charges relating to bank fraud. The jury found him guilty on
one count, acquitted him on two others, and was unable to reach a verdict on
eight more. Thereafter, defendant reached an agreement with the government
obviating further prosecution. This "Memorandum of Understanding and
Agreement" provided that pre-guideline law would govern sentencing on the
count of conviction, R. I doc. 6, exhibit 3 at 2, and that defendant would restrict
any subsequent appeal to certain specified issues, id. at 3. In return, the
government agreed that the remaining counts would be "dismissed with
prejudice," id. at 1, but qualified this promise by reserving its rights (1) to
"reinstitute all of the charges it is dismissing pursuant to this agreement" in the
event defendant's appeal resulted in a remand or dismissal with respect to the
count of conviction, id. at 3-4, and (2) to "make known to the probation service
of the Court, for inclusion in the presentence report ... any information the
Government believes may be helpful to the Court," id. at 5. The government
also promised it would "not object to the Defendant's request that sentence to
be served in the custody of the Bureau of Prisons, if any is ordered, would
include a recommendation by the Court for the Big Springs [Texas] facility."
Id. at 4.
Defendant was sentenced under pre-guideline law, and then took a direct appeal
as prescribed in the sentencing agreement. This court upheld his conviction and
sentence. See United States v. Furman, 31 F.3d 1034 (10th Cir.1994).
Defendant, who is currently incarcerated at the federal penitentiary in Florence,
Colorado, was never transferred to the Big Springs, Texas facility. Eventually,
he commenced this proceeding in the federal district of New Mexico, seeking to
vacate his conviction or correct/reduce his sentence. Among the grounds
asserted, defendant alleged the government had breached the sentencing
agreement in several respects.
Given defendant's request for judicial redaction of his original petition with
reference to Rule 35, the proceeding is not as broad as that omnibus pleading
would suggest. Thus, we first identify those claims which were properly
dismissed without prejudice when defendant's petition was transformed into a
proper Rule 35 motion. We then reach the remaining objections and affirm
their rejection on the merits.1
Although broader than present Rule 35, the pre-guideline version of the rule
still concerned only the correction/reduction of sentence. Fed.R.Crim.P. 35(a)
(correction of illegal sentence and sentence imposed in illegal manner); 35(b)

(discretionary reduction of sentence). Much of defendant's petition clearly
relates to other matters. Many of his objections, regarding speedy trial,
constructive amendment, double jeopardy, illegal seizure, and prosecutorial
misconduct (selective prosecution and obstruction of justice), question the
validity of his conviction, and thus were appropriately left to pursuit under
2255. See United States v. Rourke, 984 F.2d 1063, 1067 (10th Cir.1992);
United States v. Hamilton, 553 F.2d 63, 65 (10th Cir.1977). Others, concerning
good-time credit and parole procedure, go to the execution of sentence and,
thus, should be brought against defendant's custodian under 28 U.S.C. 2241.
See Brown v. Smith, 828 F.2d 1493, 1495 (10th Cir.1987); Dunn v. United
States Parole Comm'n, 818 F.2d 742, 744 (10th Cir.1987); see also United
States v. Scott, 803 F.2d 1095, 1096 (10th Cir.1986). Still others, involving
conditions of confinement and related civil rights allegations, should be brought
against the offending federal officials pursuant to Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971). See Badea v. Cox, 931 F.2d 573, 574 (9th
Cir.1991); see, e.g., United States v. Sisneros, 599 F.2d 946, 947 (10th
Cir.1979); cf. Richards v. Bellmon, 941 F.2d 1015, 1018 (10th Cir.1991) (same
point made in 42 U.S.C. 1983 context). These claims were all properly
dismissed without prejudice, in accordance with defendant's own request.
8
Turning to matters appropriately considered under Rule 35, we review

defendant's claims regarding breach of the sentencing agreement de novo. See
Cunningham v. Diesslin, 92 F.3d 1054, 1058 (10th Cir.1996). Our analysis
focuses on the nature and extent of the promises made by the government, but
is sensitive to the defendant's reasonable understanding thereof. See United
States v. Cooper, 70 F.3d 563, 565-66 (10th Cir.1995); United States v. Pogue,
865 F.2d 226, 227 (10th Cir.1989). Nonetheless, obligations do not issue from
mere silence; we shall not impose duties on the government that are not an
express or implied part of its agreement with the defendant. See, e.g.,
Cunningham, 92 F.3d at 1059; Pogue, 865 F.2d 227-28.
Defendant contends the government breached the sentencing agreement by (1)

dismissing the eight unresolved counts without prejudice at sentencing, (2)
including references to these counts in the presentence report, and (3) not
transferring him to the Big Springs facility. All of these contentions are belied
by the plain language of the agreement. Given the express reservation
regarding potential reinstatement of dismissed charges depending on the
outcome of defendant's direct appeal, a formal, categorical dismissal with
prejudice at sentencing was clearly not contemplated. Moreover, there is no
allegation that the government has ever attempted to prosecute defendant on
these charges in violation of the agreement. As for references to the dismissed
counts in the presentence report, the agreement did not extend the government's
forebearance beyond dismissal itself. Compare Pogue, 865 F.2d at 227-28
(promise not to press further charges did not entail limitation regarding use to
enhance punishment, about which agreement was silent), with Allen v. Hadden,
57 F.3d 1529, 1535 (10th Cir.), cert. denied, 116 S.Ct. 554 (1995) (recognizing
additional limitations on use of dismissed counts where government had added
express assurance that they "would have no adverse effect on the defendant").
See generally Robinson v. Hadden, 723 F.2d 59, 63 (10th Cir.1983) (absent
express assurances to contrary, parole commission properly considered
references in presentence report to counts dismissed under plea bargain).
Further, the government specifically reserved the right to include in the
presentence report any information it deemed useful. As to the site of
incarceration, the government simply agreed not to object when plaintiff sought
the court's recommendation for placement at Big Springs, and there is no
allegation of any such objection.
10
Defendant challenges the sentencing proceedings in several other respects, none

of which we find persuasive. First, he contends the district court violated
Fed.R.Crim.P. 11 by failing to admonish him about the possible penalties he
faced. Rule 11 applies to plea proceedings. Defendant was not pleading guilty
to anything; he had already been convicted by a jury on the one count for which
he was being sentenced. Second, he challenges the district court's refusal to use
the guidelines to temper or cap the sentence imposed under pre-guideline law.
This issue was raised and rejected on defendant's direct appeal, see Furman, 31
F.3d at 1038-39, and there are no special circumstances justifying a revisitation
of the matter here under the auspices of Rule 35. See United States v. Mazak,
789 F.2d 580, 581 (7th Cir.1986); Crosby v. United States, 410 F.2d 1145-46
(5th Cir.1969). Third, defendant complains the district court failed to resolve,
or to resolve properly, numerous objections to the presentence report, in
violation of Fed.R.Crim.P. 32(c)(3)(D). However, the issues defendant raises in
this connection do not involve factual inaccuracies in the report but, rather,
legal objections to the district court's determination of his sentence (primarily
involving the guideline arguments already rejected above).2 See R. I doc. 1, at
25-37. As Rule 32 is not a vehicle for advancing legal challenges to sentencing,
"the district court was not obligated to make Rule 32(c)(3)(D) findings with
regard to the disputed matters." United States v. Cox, 934 F.2d 1114, 1126-27
(10th Cir.1991); see also United States v. Tovar, 27 F.3d 497, 500 (10th
Cir.1994).
11
Finally, we note that defendant's original petition included a section entitled

"Mitigating and Extenuating Circumstances," R. I doc. 1, at 72-74, presumably
seeking a discretionary reduction of sentence under Rule 35(b). Actually, two of
the three matters discussed therein are not factual circumstances at all, but
simply reiterations of defendant's speedy trial and sentencing guideline
arguments, and, as such, they reflect a misemployment of Rule 35(b) similar to
the misuse of Rule 32 explained above. In any event, defendant does not refer to
Rule 35(b) or discretionary reduction of sentence in his briefs on appeal, even
though his reply brief is devoted to the specification of matters he wants the
district court to (re)consider on our anticipated remand. Instead, defendant
focusses solely on the issues underlying the legal relief sought--vacatur of
conviction, correction of sentence, and enforcement of the sentencing
agreement. We see no reason to revive, sua sponte, any abandoned issues
regarding discretionary reduction of sentence under Rule 35(b).
12
The judgment of the United States District Court for the District of New
Mexico is AFFIRMED, pending motions are denied, and the mandate shall
issue forthwith.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
We are aware that, in denying relief, the district court erroneously relied on
current Rule 35 rather than its broader pre-guideline counterpart, and that, in
light of this error, the government concedes reversal and remand "is
appropriate." Appellee's Answer Br. at 7-8. However, our analysis, which may
rest "on any grounds for which there is a record sufficient to permit conclusions
of law, even grounds not relied on by the district court," United States v.
Sandoval, 29 F.3d 537, 542 n. 6 (10th Cir.1994) (quotations omitted), is not
constrained by the government's ill-considered concession, see Koch v. United
States, 47 F.3d 1015, 1018 (10th Cir.1995) (court is not bound by parties'
stipulations regarding questions of law); United States v. Harrold, 796 F.2d
1275, 1279 (10th Cir.1986) (disregarding government's concession of
constitutional error). In particular,
parties cannot compel us to reverse (or modify) a district court's determination
by stipulation. Reversal of a district court's order requires our examination of
the merits of the case, thereby invoking our judicial function. Parties may not,
by stipulation or other means, usurp our Article III powers. Parties may, of
course, either (1) move to dismiss an appeal voluntarily, or (2) moot an appeal
by acting in a manner that obviates resolution of the pending controversy, but in
such cases this court can do no more than dismiss the appeal and, where
appropriate, direct that the judgment appealed be vacated. Even joint action of
the parties to an appeal may not effect or compel a substantive alteration of the
judicial disposition under review.
Bolin v. Secretary of Health & Human Servs., 32 F.3d 449, 450 (10th
Cir.1994). As we hold defendant has failed to state a claim under former Rule
35, we affirm the dismissal of this action notwithstanding the district court's
mistaken reliance on the new rule and the government's consequent concession
of reversible error.
2
We deem defendant's perfunctory catch-all reference to "[o]ther matters

objected to as seen in Docket Nos. 111, 129 & 149," R. I doc. 1, at 26, a clearly
inadequate presentation of what objections, if any, are included therein

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110 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals, Tenth Circuit.

Before PORFILIO, ANDERSON, and BRISCOE, Circuit Judges.

1ORDER AND JUDGMENT*

(correction of illegal sentence and sentence imposed in illegal manner); 35(b)

Turning to matters appropriately considered under Rule 35, we review

Defendant contends the government breached the sentencing agreement by (1)

Defendant challenges the sentencing proceedings in several other respects, none

Finally, we note that defendant's original petition included a section entitled

We deem defendant's perfunctory catch-all reference to "[o]ther matters

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