CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
PARTIES
The appellant, xxxxxxx xxxxxxx, and the appellee, the United States of America, are the only parties before this Court and were the only parties before the district court. There are no intervenors or amici.
RULINGS UNDER REVIEW
This appeal seeks review of two rulings made on September 22, 1995 by United States District Judge Norma Holloway Johnson on remand by this Court for further proceedings on appellant's motion pursuant to 28 U.S.C. § 2255. First, appellant seeks review of the district court's finding that he was not entitled to an additional one-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b), after the court erroneously found that his notice to plead guilty was untimely pursuant to § 3E1.1(b). APP 173-175.
Second, appellant seeks review of the district court's denial of his motion filed pursuant to 28 U.S.C. § 2255 after erroneously finding that defendant's counsel was not ineffective in failing to request an additional one-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b). APP 173. These two rulings have not been reported.
RELATED CASES
This case has previously been before this Court. In United States v. xxxxxxx xxxxxxx, Jr., No. 95-3004, this Court ordered that the case be remanded for further proceedings.
APP 9. There are presently no other related cases pending in this Court of which counsel is aware.
TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES i
TABLE OF AUTHORITIES v
ISSUE PRESENTED 1
STATUTES AND REGULATIONS 1
JURISDICTION 2
STATEMENT OF THE CASE 2
A.The Guilty Plea 2
B.The Sentencing 4
C.The § 2255 Motion 5
D.The First Appeal 5
E.The Remand 6
SUMMARY OF ARGUMENT 7
DISCUSSION 9
I.THE DISTRICT COURT ERRED IN DENYING DEFENDANT'S § 2255 MOTION WHERE DEFENDANT'S COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO REQUEST AN ADDITIONAL ONE-LEVEL REDUCTION FOR ACCEPTANCE OF RESPONSIBILITY UNDER U.S.S.G. § 3E1.1 (b), EVEN THOUGH THE DEFENDANT TIMELY NOTIFIED THE PROSECUTION OF HIS INTENTION TO
PLEAD GUILTY 9
A.Standard of Review 9
B.Counsel Erroneously Failed To Request An Additional One-Level Reduction Under U.S.S.G. § 3E1.1(b) 9
(1)The District Court Clearly Erred in Finding that Defendant's Notice to Plead Guilty Was Untimely 11
(2)Counsel's Failure To Request An Additional One-Level Reduction Under U.S.S.G. § 3E1.1(b) Was Objectively Unreasonable 25
(3)A Reasonable Probability Existed That Defendant Would Have Received A Shorter Term of Incarceration Had Counsel Requested The Additional One-Level Reduction Under U.S.S.G. § 3E1.1(b) 29
CONCLUSION 30
CERTIFICATE AS TO LENGTH OF BRIEF 32
CERTIFICATE OF SERVICE 32
ADDENDUM
CASES
Brady v. Maryland,
373 U.S. 83 (1963)22
Branzburg v. Hayes,
408 U.S. 665 (1972)22
Gideon v. Wainwright,
372 U.S. 335 (1963)9
Hill v. Lockhart,
474 U.S. 52 (1985)10
Johnson v. Zerbst,
304 U.S. 458 (1938)9
Kimmelman v. Morrison,
477 U.S. 365 (1986)10
McMann v. Richardson,
397 U.S. 759 (1970)9
Powell v. Alabama,
287 U.S. 45 (1932)9
* Strickland v. Washington,
466 U.S. 668 (1994)passim
United States v. Barbour,
813 F.2d 1232 (D.C. Cir. 1987)10
United States v. Calandra,
414 U.S. 338 (1974)22
United States v. Colussi,
22 F.3d 218 (9th Cir. 1994)25, 30
United States v. Frady,
456 U.S. 152 (1982)5, 29
* United States v. Headley,
923 F.2d 1079 (3d Cir. 1991)28, 31
United States v. Hopper,
27 F.3d 378 (9th Cir. 1994)19
United States v. Kimple,
27 F.3d 1409 (9th Cir 1994)22-24
United States v. Loughery,
908 F.2d 1014 (D.C. Cir. 1990)10
United States v. McClain,
30 F.3d 1172 (9th Cir. 1994)20
United States v. McConaghy,
23 F.3d 351 (11th Cir. 1994)21, 23
United States v. Mills,
9 F.3d 1132 (5th Cir. 1993)25, 30
United States v. xxxxxxx xxxxxxx, Jr.,
No. 95-3004 (D.C. Cir. 1994)5
United States v. Pollard,
959 F.2d 1011 (D.C. Cir.),
cert. denied, 113 S. Ct. 322 (1992)9
United States v. R. Francis,
39 F.3d 803 (7th Cir. 1994)20
United States v. Sitton,
968 F.2d 947 (9th Cir. 1992)22
United States v. Streater,
70 F.3d 1314 (D.C. Cir. 1995)9, 10
United States v. Watt,
910 F.2d 587 (9th Cir. 1990)22
STATUTES AND REGULATIONS
28 U.S.C. § 2255passim
U.S.S.G. § 3E1.1(b)passim
* Cases chiefly relied upon are marked with an asterisk.
Whether the district court erred in denying defendant's § 2255 motion where defendant's counsel rendered ineffective assistance by failing to request an additional on-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b), even though defendant timely notified the prosecution of his intention to plead guilty.
The pertinent statutes and regulations appear in the addendum to this brief.
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 95-3184
BRIEF OF APPELLANT
UNITED STATES OF AMERICA,Plaintiff-Appellee,
v.
xxxxxxx xxxxxxx, Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
The district court had jurisdiction of this case under 28 U.S.C. § 2255. Defendant having filed a notice of appeal within the time period of Fed. R. App. P. 4(a), this Court has jurisdiction of the case under 28 U.S.C. §§ 1291 and 2255.
On March 10, 1992, Stepfoun Hartwell and, defendant-appellant, xxxxxxx xxxxxxx, Jr. entered Independence Federal Savings Bank in Washington, D.C. where reportedly Stepfoun Hartwell approached a bank teller and demanded all of her hundred and fifty dollar bills. PSR ¶ 3. Mr. Hartwell threatened the teller and held his hand under his shirt creating the impression of a gun. Id. Defendant Hartwell then approached another teller, demanded money, threatened him and received a sum of money before exiting the bank with Mr. xxxxxxx who acted as a lookout. Id. Mr. xxxxxxx was arrested on April 9, 1992. PSR coversheet. On April 10, 1992, the government expressed an interest in Mr. xxxxxxx' cooperation against Mr. Hartwell but Mr. xxxxxxx declined. APP 25-27.
On May 7, 1992, Mr. xxxxxxx and co-defendant, Mr. Hartwell, were charged in a one-count indictment charging each with armed bank robbery, in violation of 18 U.S.C. § 2113(a) § 2113(d).
APP 11-12.
On June 12, 1992, the government formally offered
Mr. xxxxxxx a plea to the lesser included offense of unarmed
bank robbery, in violation of 18 U.S.C. § 2113(a), in exchange
for his cooperation against Mr. Hartwell. APP 27. Mr. xxxxxxx
declined. APP 27. On June 15, 1992, the court scheduled Mr.
xxxxxxx' trial for September 29, 1992. APP 24.
On September 8, 1992, a new offer was made to Mr. xxxxxxx which comprised of a plea to the lesser charge of unarmed bank robbery without cooperation against Mr. Hartwell who had since decided to resolve his case. APP 61-62. Mr. xxxxxxx accepted this offer and pleaded guilty on October 5, 1992. APP 6, 30.
The presentence report indicated that U.S.S.G. § 2B3.1 was the applicable offense guideline and that Mr. xxxxxxx' offense level under that guideline, with two points for express threat of death and two points because the property was taken from a financial institution, was 24. PSR ¶¶ 8-14. The presentence report deducted two levels for acceptance of responsibility under U.S.S.G. § 3E1.1, resulting in a total offense level of 22. PSR ¶¶ 15, 16. The presentence report also indicated that the defendant was in criminal history category III. PSR ¶ 29.
On January 22, 1993 Mr. xxxxxxx was sentenced. APP 7. At the hearing, the district court, without objection from defendant or the government, determined the total offense level to be 22 and defendant's criminal history category to be III. APP 193. Offense level 22, criminal history category III, yielded a guideline sentencing range of 51-63 months. (U.S.S.G. Ch. 5, Pt. A (sentencing table); see APP 180.) The district court then sentenced Mr. xxxxxxx to a term of imprisonment of 63 months, followed by a three-year term of supervised release, and a $50 special assessment. APP 190-193.
At the time of Mr. xxxxxxx' sentencing, the guidelines had been amended to include an additional one-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b). U.S.S.G. § 3E1.1, amend. Nov. 1, 1992. This amendment became effective November 1, 1992, just two months prior to Mr. xxxxxxx' sentencing hearing on January 22, 1993. No mention of this amendment was made.
Defendant filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, and correct his sentence. APP 177-186. Defendant claimed that his trial counsel was ineffective because he failed to request an additional one-level decrease for acceptance of responsibility under § 3E1.1(b). App 184.
The district court denied the § 2255 petition without a hearing. APP 187-189. The court held that the defendant was barred from raising his claim not having raised it on direct appeal. The district court concluded:
xxxxxxx's failure to prove objective deficiency and actual prejudice, per Strickland [Referring to Strickland v. Washington, 466 U.S. 668 (1994).], results in the demise of his claim of ineffective assistance of counsel. Therefore, xxxxxxx fails the "cause" prong of the Frady [Referring to United States v. Frady, 456 U.S. 152 (1982)] "cause and prejudice" test because he has not demonstrated "cause" excusing his failure to raise this claim on direct appeal. xxxxxxx's failure to demonstrate "actual prejudice" resulting from the alleged error, discussed above, results in the failure of the second prong of the Frady "cause and prejudice" test. Because xxxxxxx has failed to establish cause and prejudice for his procedural default, his § 2255 motion must be denied. APP 188-189.
Defendant appealed from the denial of the § 2255 petition. APP 9. United States v. xxxxxxx xxxxxxx, Jr., No. 95-3004 (D.C. Cir. 1994). This Court ordered that the case be remanded to the district court for further proceedings. APP 9. Specifically, this Court ordered:
On remand the court should make factual findings regarding when appellant or his counsel first notified the government of appellant's desire to enter a guilty plea, and whether such notice was sufficiently timely and unequivocal that it relieved the government of the burden to prepare for trial. The district should further determine whether, in light of the facts found, it would have granted appellant the additional one- point reduction provided by U.S.S.G. § 3E1.1(b)(2) had his counsel raised it at sentencing. Finally, the district court should reconsider appellant's motion filed pursuant to 28 U.S.C. § 2255 in light of the aforementioned findings and conclusions.
APP 9.
E.The Remand
The district court held the remand hearing on September 8, 1995. APP 10. At this hearing, the government called one witness: defendant's counsel, Mr. James William Rudasill, Jr. App. 20. Defense counsel testified that Mr. xxxxxxx pleaded guilty pursuant to a plea agreement which did not include an agreement as to Mr. xxxxxxx' guideline calculation. APP 40-44. The plea offer made to Mr. xxxxxxx was not contingent on Mr. xxxxxxx' agreement to forgo the request for an additional one level reduction under U.S.S.G. § 3E1.1(b). APP 40-44. Furthermore, Mr. Rudasill testified that while he was aware of the amendment creating the additional one-level reduction under § 3E1.1(b), he did not request this reduction at the time of sentencing nor did he object to the probation office's calculation of a two-level reduction for acceptance of responsibility rather than the three-level reduction under the new amendment. APP 50-51.
Following the hearing, appellant and the government each submitted Proposed Findings of Fact and Conclusions of Law for the district court's consideration. APP 101-146. In addition, both parties submitted Responses to the pleadings filed pursuant to the district court's order. APP 147-168. On September 22, 1995, the district court issued its Memorandum Opinion on Remand and again denied appellant's § 2255 motion. APP 169. The court found that defense counsel had exercised his professional judgment in deciding not to argue for the additional one-point reduction. APP 173. The court further found that had defense counsel requested this reduction, the defendant would not have been entitled to the reduction because his notice to plead guilty did not relieve the government of its burden to prepare for trial nor permit the court to allocate its resources efficiently as required by § 3E1.1(b). APP 173-175. The court therefore found that Mr. xxxxxxx had failed to meet his burden under Strickland v. Washington, 466 U.S. 668 (1984) resulting in the demise of his claim of ineffective assistance of counsel. APP 175.
The district court erred in denying defendant's § 2255 motion after defendant's counsel was ineffective for failing to request an additional one-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b), where notice to plead guilty was timely made.
First, the district court clearly erred in finding that defendant's notice to plead guilty was untimely made under § 3E1.1(b) and that therefore defendant was not entitled to the additional one-level reduction. The court's decision was based on erroneous findings of fact that defendant's notice to plead guilty had not been made at the earliest opportunity, had not permitted the court to allocate its resources efficiently and had not relieved the government of its burden in preparing for trial.
Second, based on the erroneous findings of fact mentioned above, the district court erred in finding that defendant's counsel was not ineffective. Counsel's failure to request an additional one-level reduction was below the standard required under the Sixth Amendment. The court's finding that counsel's decision not to request the additional reduction was a strategical decision was clearly erroneous. Furthermore, counsel's deficiency prejudiced defendant in that but for counsel's conduct, defendant would have received a shorter term of imprisonment.
I.THE DISTRICT COURT ERRED IN DENYING DEFENDANT'S § 2255 MOTION WHERE DEFENDANT'S COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO REQUEST AN ADDITIONAL ONE-LEVEL REDUCTION FOR ACCEPTANCE OF RESPONSIBILITY UNDER U.S.S.G. § 3E1.1 (b), EVEN THOUGH THE DEFENDANT TIMELY NOTIFIED THE PROSECUTION OF HIS INTENTION TO PLEAD GUILTY.
This court reviews the district court's factual determinations in its § 2255 ruling under the clearly erroneous standard, United States v. Streater, 70 F.3d 1314, 1318 (D.C. Cir. 1995), while its legal conclusions are reviewed de novo. United States v. Pollard, 959 F.2d 1011, 1023 (D.C. Cir.), cert. denied, 113 S. Ct. 322 (1992).
B.Counsel Erroneously Failed To Request An Additional One-Level Reduction Under U.S.S.G. § 3E1.1(b)
The Supreme Court has stated "that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial." Strickland v. Washington, 466 U.S. 668, 684 (1984) (citing Powell v. Alabama, 287 U.S. 45 (1932), Johnson v. Zerbst, 304 U.S. 458 (1938), and Gideon v. Wainwright, 372 U.S. 335 (1963)). The Court has emphasized that "the right to counsel is the right to the effective assistance of counsel." Strickland, 466 U.S. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970)).
Ineffective assistance has been rendered when 1) counsel's representation fell below an objective standard of reasonableness; and 2) there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. 694; Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); Hill v. Lockhart, 474 U.S. 52, 56, 59 (1985). See also United States v. Streater, 70 F.3d 1314 (D.C. Cir. 1995); United States v. Loughery, 908 F.2d 1014, 1018 (D.C. Cir. 1990). Counsel's performance is deficient if it does not rise to the level of reasonably effective assistance. Kimmelman, 477 U.S. at 381. A court measures the reasonableness of counsel's performance against prevailing professional norms. United States v. Barbour, 813 F.2d 1232, 1234 (D.C. Cir. 1987). At a minimum, counsel has a duty to act "on behalf of his client's best interests." Id. A satisfactory showing of prejudice need only rise to the level of a reasonable probability that the result of the proceeding would have been different but for counsel's deficient representation. Strickland, 466 U.S. at 694. On a scale of evidentiary burdens, a reasonable probability is shown by less than a preponderance of the evidence. Id. at 693-694.
In the instant case, defense counsel's erroneous failure to request an additional one-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b) clearly fell below an objective standard of reasonableness. Moreover, the record below supports the conclusion that but for counsel's deficient performance, a reasonable probability exists that Mr. xxxxxxx would have been sentenced to a lesser term of imprisonment. Therefore, the district court should have granted his post-sentence motion, filed pursuant to 28 U.S.C. § 2255, to correct his sentence.
(1)The District Court Clearly Erred in Finding that Defendant's Notice to Plead Guilty Was Untimely
The United States Sentencing Guidelines provide in pertinent part:
(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and the defendant has assisted authorities in the investigation or prosecution of his own misconduct by taking one or more of the following steps:
(1) timely providing complete information to the government concerning his own involvement in the offense; or
(2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently,
decrease the offense level by 1 additional level.
U.S.S.G. § 3E1.1 (emphasis added).
The additional one-level reduction under section (b) was added to the guidelines through the November 1, 1992 amendments which became effective two months prior to Mr. xxxxxxx' sentencing on January 22, 1993. U.S.S.G. § 3E1.1., amended Nov. 1, 1992. Mr. xxxxxxx had pleaded guilty on October 5, 1992 after the government made him a plea offer to the lesser included offense of unarmed bank robbery. APP 30, 61-62.The plea agreement did not include any agreement as to the applicable guideline calculations. APP 40-44. Thus, on the day of sentencing, defense counsel could have requested the new additional one-level reduction but did not. Mr. xxxxxxx was sentenced to 63 months incarceration. APP 191. With the reduction, however, Mr. xxxxxxx' sentence would have been 57 months incarceration. APP 115.
Mr. xxxxxxx filed a § 2255 motion claiming that his defense counsel had been ineffective for failing to request the additional one-level reduction. APP 184. The district court, however, denied the motion and held that Mr. xxxxxxx was procedurally barred from raising his claim not having raised it on appeal. APP 188-189. Mr. xxxxxxx appealed and this Court remanded the case for further proceedings regarding whether or not Mr. xxxxxxx would have been eligible for the additional one-level reduction. APP 9. On remand, the district court found that Mr. xxxxxxx would not have been entitled to the additional one-level reduction based on several erroneous findings. First, the court erroneously believed that Mr. xxxxxxx' notice to plead guilty on September 8, 1992, had not been made at the earliest opportunity, relying on the government's assertion that Mr. xxxxxxx had been made plea offers before that time. Secondly, the court erroneously found that Mr. xxxxxxx' notice to plead guilty did not permit the court to allocate its resources efficiently. Lastly, the court erroneously found that Mr. xxxxxxx' notice to plead guilty was insufficient to relieve the government of its burden in preparing for trial.
At the remand hearing on Mr. xxxxxxx' § 2255 motion, the government called one witness, defense counsel, Mr. James W. Rudasill, Jr. APP 20. Mr. Rudasill testified that his representation of Mr. xxxxxxx began April 6, 1992, after defendant was arrested for armed bank robbery. APP 24. According to the government's proposed findings of fact, on April 10, 1992, Mr. xxxxxxx was offered a preindictment plea agreement but that offer was declined. APP 132-133. However, although Mr. Rudasill initially testified at the remand hearing that a preindictment plea offer was extended to Mr. xxxxxxx which would require his cooperation (APP 25), Rudasill later clarified that "it was not a formalized offer from the United States Attorney's Office. It was just an expression that the government had an interest in discussing the matter with Mr. xxxxxxx prior to his indictment." APP 26-27. Mr. Rudasill testified that on June 12, 1992, the government had made a formal plea offer to Mr. xxxxxxx which required his cooperation against the co-defendant in exchange for a guilty plea to a lesser included offense of unarmed bank robbery. APP 27. Because no formal plea offer had been made prior to that date, the government's proposed finding that the defendant was "offered another opportunity to plead guilty on [June 12, 1992] and again declined," (emphasis added) was inaccurate. APP 133.
Mr. Rudasill also testified that on September 8, 1992, Mr. xxxxxxx notified him that he wanted to plead guilty and on that same day, Rudasill, in turn, notified the government. APP 30. This was corroborated by Mr. Rudasill's notes. APP 30, 130. On cross-examination, Mr. Rudasill admitted that it was not until September 8, 1992 that "the government offered [Mr. xxxxxxx] this new offer, which was just an unarmed bank robbery and no cooperation" since the co-defendant had decided to resolve his case. APP 61-62.
The court's questioning during the remand hearing (APP 25-27), and the court's Memorandum Opinion on Remand (APP 169), which adopts the government's findings of fact and conclusions of law, strongly suggest that the court erroneously believed that Mr. xxxxxxx was given earlier opportunities to plead guilty. As evidenced by the record, however, Mr. xxxxxxx' notice to plead guilty on September 8, 1992 was his first opportunity to plead guilty to a lesser charge without the condition of cooperating against the co-defendant.
The court erroneously found that Mr. xxxxxxx' notice to plead guilty did not permit the court to allocate its resources efficiently. This finding was based on the court's erroneous conclusion that "[t]he case was removed from the Court's trial calendar six days before the scheduled trial date" and that the court was informed of defendant's intent to enter a guilty plea approximately three months after setting the trial date.
APP 171, 174. However, no evidence was presented as to when the court was notified of Mr. xxxxxxx' intent to plead guilty nor when the case was removed from the court's trial calendar.
During the hearing, the court asked Mr. Rudasill when the trial date was asked to be removed from the calendar and Mr. Rudasill answered that he did not know. APP 67. Mr. Rudasill stated that "the direct notification to the court was handled by the United States." APP 56-57. The prosecutor was not called as a witness nor was any other evidence presented to establish when the court was notified. In fact, when on cross-examination this information was again attempted to be elicited, the government objected.
DEFENSE COUNSEL: Well, Mr. Rudasill, let me ask you, did you notify the Court or do you know was it Mr. McCormack --
PROSECUTOR: Your Honor, I'm going to object. Isn't the relevant point of inquiry when the government was notified, not when the Court was notified?
THE COURT: I would certainly think it would be ...
APP 56.
Mr. Rudasill further testified that he was notified by the government approximately September 23, 1993, that the court had scheduled Mr. xxxxxxx' plea for October 5, 1992. APP 67. As to whether the court was inconvenienced by Mr. xxxxxxx' decision to plead guilty, Mr. Rudasill testified that the October 5, 1992 plea date had been scheduled "for the convenience of the court." APP 67. Thus, there is no evidence to suggest that Mr. xxxxxxx' notice to plead guilty did not permit the court to allocate its resources efficiently.
Lastly, the court erroneously found that Mr. xxxxxxx'
notice to plead guilty was insufficient to relieve the government
of its burden in preparing for trial. This finding was based
solely on defense counsel's testimony, as no other evidence
regarding the government's preparation for trial was presented.
Specifically, Mr. Rudasill's testimony established that by September 8, 1992, the government had convened a grand jury to indict defendant based on defense counsel's knowledge that an indictment had been filed (APP 31); had participated with defense counsel in a discovery conference (APP 32); had received and responded to defendant's discovery requests (APP 32); had responded to defendant's motion to sever the defendants (APP 33); and had appeared at a hearing to revoke defendant's bond after he absconded from the halfway house (APP 34-35.) However, Mr. Rudasill testified on cross-examination that he had not received proposed jury instructions, proposed voir dire questions, nor any motions in limine or other pleadings from the government in contemplation of trial. APP 51-53.
Despite contradictions in Mr. Rudasill's testimony, the court credited it in finding that the government was prepared for trial by September 8, 1992. For example, on cross-examination, Mr. Rudasill explained the government's September 8, 1992 plea offer by stating that the government "[was] no longer interested in [Mr. xxxxxxx'] cooperation, but they were interested in not having to try a case." APP 61. Furthermore, at the conclusion of the hearing, Mr. Rudasill's explanation for failing to request the additional one-level reduction did not include his belief that the government had prepared for trial:
While not everything that was necessary prior to a trial was done in this case, we did go through an extensive pretrial status hearing several months prior to Mr. xxxxxxx indicating that he was willing to accept the plea offer. At that time this Court at that status hearing, which was held on June 15th, this Court made specific findings as to the status of the case and as to whether or not a defendant is inclined to plead at that time, and it then arranges its calendar based on setting the case for trial. And I just didn't believe that, having not finalized this plea until a couple of weeks before trial, that it was a meritorious argument to present to the Court.
APP 65-66.
The court apparently believed that Mr. Rudasill's readiness to proceed to trial by September 8, 1992 was relevant to whether the government also had prepared for trial.
THE COURT: Were you, Mr. Rudasill, prepared to represent your client for trial on September 29?
THE WITNESS: I would have been if --
THE COURT: Well, that's the question. Were you prepared to --
THE WITNESS: Yes, yes, Your Honor. Yes, I was prepared to try the matter on September 29th.
THE COURT:-- try the matter on the date that it had been scheduled?
THE WITNESS: That's correct.
THE COURT: All right. I don't think I have any additional questions...
APP 68. The court found that "counsel was prepared to go to
trial on the scheduled trial date." APP 170-171. Based on this
marginally relevant evidence, the court erroneously found that
the government had expended significant time and resources in
preparing for trial.
Even if the court did not err in finding that the government had done some preparation for trial, such preparation did not preclude defendant from receiving the additional one-level reduction under U.S.S.G. § 3E1.1(b), as erroneously held by the district court. The factors considered by the district court, neither alone nor in combination, precluded defendant from obtaining the additional one-level reduction. Thus, the district court's ruling turns on the meaning of "trial preparation" as contemplated by § 3E1.1(b), apparently an issue of first impression in this Court.
The court in United States v. Hopper, 27 F.3d 378, 385 (9th Cir. 1994), held that "if either the prosecution is substantially prepared to present its case or the court has not been given sufficient time to reschedule its calendar, then the defendant is not entitled to an additional one-level reduction under subsection (b)(2) (emphasis added)." In Hopper, the defendant was not entitled to a third point reduction because "Hopper failed to plead guilty prior to the Government's substantial trial preparation and investigation." Id. at 385. The Court did not articulate specifically what preparation was done by the government. However, the Court's opinion strongly suggests that more than a minimal amount of preparation is required: "If the Government has already spent considerable time and effort preparing for trial and is at least substantially prepared to present its case, then the decision is not timely enough to promote prosecutorial efficiency or economy (emphasis added)." Id.
The Ninth Circuit again addressed this issue in United States v. McClain, 30 F.3d 1172 (9th Cir. 1994). In McClain, the court rejected the defendant's claim that he was entitled to the third point reduction because his plea was timely after finding that the defendant's pretrial motions had been litigated. Id. at 1174. Furthermore, the court held that "[b]y the time McClain entered his plea on January 22, the prosector had prepared seven subpoenas and had them served. The prosecutor also had planned her exhibits." Id.
Similarly, the court in United States v. R. Francis, 39 F.3d 803, 808 (7th Cir. 1994), stated that "an early notification of an intention to plead guilty does not by itself entitle a defendant to a reduction under subsection (b)(2) unless it served the purpose of conserving government and court resources." The defendant's request for a third point reduction was rejected because he pleaded guilty one week before trial, after various pre-trial conferences were held and after the trial was rescheduled several times. Id. at 808. In addition, the government filed superseding indictments, a number of motions to sever one defendant from the remaining defendants, and a motion for handwriting exemplars. Id. The court held that "the defendants have wasted enough government resources not to qualify for the additional level of reduction under § 3E1.1(b)." Id.
In the instant case, the court found that the government had "prepared for trial" by obtaining an indictment, providing discovery, and filing an opposition to Mr. xxxxxxx' severance motion. APP 174. In addition, the court found that Mr. xxxxxxx' escape from the halfway house required a hearing which expended government resources. Id. The court's ruling implies that any expenditure by the prosecution of time and resources precludes a defendant from receiving the third point reduction under § 3E1.1(b)(2). As recognized by the court in United States v. McConaghy, 23 F.3d 351 (11th Cir. 1994), such an interpretation of that guideline would raise serious constitutional concerns.
In McConaghy, the defendant was denied a third level reduction after pleading guilty approximately one week before trial. Id. at 352. As in this case, the defendant made known his desires to plead guilty as early as circumstances permitted. McConaghy argued that his delay in pleading was due to his attorney's need to investigate. Id. at 354. The court vacated Mr. McConaghy's sentence and remanded for specific findings as to whether his notification was timely.
Significantly, the court in McConaghy disagreed with the government's argument that timely notice meant notice prior to any trial preparation:
Avoiding trial preparation and the efficient allocation of the court's resources are descriptions of the desirable consequences and objectives of the guideline. They are not of themselves precise lines in the sand that solely determine whether notification was timely.
To interpret and apply the guideline as the government suggests, i.e., awarding a decrease only on the condition that notice of intent to plea guilty be given before the government engaged in any trial preparation, and without any regard to the attorney's opportunity to investigate the case, would raise serious questions regarding the constitutionality of the guideline as applied.
Id. at 353.
Furthermore, courts have held that in denying a reduction for acceptance of responsibility, "the court may not consider against the defendant any constitutionally protected conduct." United States v. Sitton, 968 F.2d 947, 962 (9th Cir. 1992), citing United States v. Watt, 910 F.2d 587, 592 (9th Cir. 1990).
In United States v. Kimple, 27 F.3d 1409, 1413 (9th Cir 1994), the court held that "[t]he denial of a reduction under subsection (b)(2) is impermissible if it penalizes a defendant who has exercised his constitutional rights."
The charging by a grand jury is a well established constitutional right. See United States v. Calandra, 414 U.S. 338, 343 (1974) citing Branzburg v. Hayes, 408 U.S. 665, 686-87 (1972) (functions include the determination of probable cause and protection of citizens against unfounded criminal prosecution). In addition, a defendant's right to exculpatory evidence falls within his right to due process. See Brady v. Maryland, 373 U.S. 83, 87 (1963) ("the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecutor"). Thus, in the instant case, the district court erred in finding that Mr. xxxxxxx' notice was untimely based on the government calling of a grand jury to seek an indictment and based on defense counsel's receipt of discovery.
The court's reliance on the filing of an opposition to defendant's severance motion also is erroneous. On June 29, 1992, the government filed a combined opposition to severance motions filed by defendant and co-defendant - two months before the scheduled motions hearing and trial date on September 29, 1992. APP 63. However, no motions hearing was held since Mr. xxxxxxx decided to plead guilty on September 8, 1992. APP 54-55. Moreover, defense counsel testified that no other pretrial motions were filed. Id. Thus, the expenditure of prosecutorial resources was minimal.
The court in Kimple, 27 F.3d at 1413, specifically dealt with the issue of pretrial motions in applying § 3E1.1(b)(2). The court held that the defendant was entitled to the additional one-level reduction for timely acceptance despite his vigorously defending himself by filing a motion to suppress evidence that involved extensive briefing by the parties and hearing and consideration by the court. Id. at 1414-1415. In rejecting the government's argument that it was forced to prepare for trial in opposing the motion to suppress so that it could preserve evidence for trial, the court stated:
We disagree with the Government's characterization of its efforts as trial preparation. Merely opposing a suppression motion is not sufficient to constitute trial preparation. Nor has the Government established that it did in fact prepare for trial beyond its opposition to Kimple's pretrial motions.
Id. The court reasoned that "the district court may not penalize the defendant for legitimately attempting to protect his constitutional rights." Id. at 1415. As in Kimple, Mr. xxxxxxx should not be penalized for legitimately attempting to protect his constitutional rights and right to a fair trial.
Lastly, in the instant case, the court considered Mr. xxxxxxx' escape from the halfway house and subsequent hearing for modification of release. The court found that the government expended resources because a prosecutor appeared at this hearing. As reflected in the caselaw, however, "preparation for trial" under § 3E1.1(b)(2) requires "meaningful trial preparation." Kimple, 27 F.3d at 1413. A hearing to revoke Mr. xxxxxxx' work release privileges requiring a prosecutor's appearance should not be considered "meaningful trial preparation."
The district court erred in finding that Mr. xxxxxxx'
notice to plead guilty was untimely and that he was not entitled
to the additional one-level reduction under § 3E1.1(b). Mr.
xxxxxxx's notification to plead guilty on September 8, 1992,
permitted the government to avoid preparing for trial and
permitted the court to allocate its resources efficiently, as
required under § 3E1.1(b)(2). In addition, Mr. xxxxxxx was
awarded a two-point reduction for acceptance of responsibility
under § 3E1.1(a). See PSR at p. 4, ¶ 15. Mr. xxxxxxx'
eligibility for this reduction was undisputed. Furthermore, Mr.
xxxxxxx' offense level prior to the operation of subsection (2)
is greater than 16.
Once it finds that Mr. xxxxxxx satisfies
those three requirements under § 3E1.1(b)(2), "the district court
is directed under the imperative of the final clause of
subparagraph (b), to award the additional 1-level decrease in
offense level." United States v. Mills, 9 F.3d 1132, 1137 (5th
Cir. 1993). See also United States v. Colussi, 22 F.3d 218, 219
(9th Cir. 1994) (the extra one-level reduction authorized by the
addition of paragraph (b) is not discretionary if the required
showing is made). Therefore, the district court was required to
award the additional reduction to Mr. xxxxxxx.
(2)Counsel's Failure To Request An Additional One-Level Reduction Under U.S.S.G. § 3E1.1(b) Was Objectively Unreasonable
In the present case, defendant's counsel testified at the remand hearing that at the time of Mr. xxxxxxx' sentencing he (counsel) was aware of the additional one-level reduction for acceptance of responsibility based on the November 1, 1992 amendments to U.S.S.G. § 3E1.1(b). APP 35. Yet defense counsel made no request for this reduction at the sentencing. APP 51. Counsel's failure to argue for the additional one-level reduction fell below the minimal reasonable standard of competence required of criminal defense attorneys.
The district court credited defense counsel's testimony that at the time of Mr. xxxxxxx' sentencing he was aware of the amendment allowing for an additional one-level reduction for acceptance of responsibility. Mr. Rudasill testified, however, based on a review of his notes, that on June 12, 1992, he had calculated Mr. xxxxxxx' guideline range deducting only two-points for acceptance of responsibility. APP 46. At the time of sentencing, Mr. xxxxxxx' presentence report reported a two-point deduction for acceptance of responsibility and did not mention the possibility of an additional one-level reduction under § 3E1.1(b). PSR ¶ 10. More importantly, Rudasill never mentioned to Mr. xxxxxxx the possibility of an additional one-level reduction under the new amendments. APP. 43. Counsel did testify, however, that at the time of Mr. xxxxxxx' guilty plea he "joked" with the prosecutor about the third point for acceptance of responsibility. APP 42-43. The prosecutor was not called as a witness at the hearing.
Rudasill admitted that defendant's plea agreement did not include any limitations as to guideline calculations. APP 42-43. He also admitted that he was not precluded from raising the additional one-level reduction since this was not a condition of the government's plea offer. APP. 43. However, he characterized his failure to request the reduction as a strategical decision and stated that he "viewed the argument to be essentially frivolous on the record." APP 65.
Defense counsel's assertion that based on his professional opinion he believed it was a "frivolous" argument is belied by the facts. First, counsel testified that his decision to not request the additional point reduction was based on his knowledge of the United States Attorney Office's policy but then later admitted that no policy existed since U.S.S.G. § 3E1.1(b) was a newly enacted law which only became effective November 1, 1992-- two months prior to Mr. xxxxxxx' sentencing. APP 50. Secondly, Rudasill admitted that no caselaw existed at the time which interpreted the language of U.S.S.G. § 3E1.1(b). APP 48. Lastly, defense counsel attempted to support his decision by stating that he had attended a seminar regarding this issue. However, he later admitted that this seminar was merely a presentation of all November 1, 1992 Amendments to the Guidelines and did not specifically address § 3E1.1(b). APP 47.
Even if Rudasill relied on his own interpretation of
§ 3E1.1(b), his representation was clearly deficient. There is no evidence that he discussed the additional one-level reduction with the government except in a joking manner minutes before Mr. xxxxxxx plea. APP 42-43. More importantly, counsel made no attempt to assure that Mr. xxxxxxx' notice to plead guilty was timely by directly notifying the court. Given the timeliness issue under § 3E1.1(b), defense counsel had an obligation to personally notify the court that there would be no trial rather than relying on the government in order to secure for his client this additional one-level reduction.
This case does not involve the question of whether defense counsel's decision was sound litigation strategy because under the circumstances here, there was no legal or practical bar to raising the one-level reduction. Thus, this is not a case where defense counsel made a tactical decision that in hindsight was ill-advised. Instead, counsel's failure to request the additional one-level reduction deprived Mr. xxxxxxx of his fundamental right to effective assistance of counsel.
In United States v. Headley, 923 F.2d 1079 (3d Cir. 1991), the court found that a defense lawyer who had failed to request a downward mitigating role adjustment had rendered ineffective assistance of counsel. The court stated, in a passage equally applicable to the present case:
There is no rational basis to believe that . . . trial counsel's failure to argue adjustment was a strategic choice. Clearly it falls outside the prevailing professional norms.
Id. at 1084.
There could be no strategic reason in the present case to fail to request the additional one-level reduction of § 3E1.1(b). In fact, because Mr. xxxxxxx met all of the requirements for the additional reduction the only possible consequence of requesting such a reduction was a shorter term of incarceration for his client, yet counsel did nothing in that regard. This failure, just as in Headley, clearly falls outside prevailing professional norms.
(3)A Reasonable Probability Existed That Defendant Would Have Received A Shorter Term of Incarceration Had Counsel Requested The Additional One-Level Reduction Under U.S.S.G. § 3E1.1(b)
Defendant must also show that it is reasonably likely that
the outcome of the sentencing would have been different had
counsel requested the additional one-level reduction under
§ 3E1.1(b).
This appears to involve a two-part analysis of:
1) determining whether defendant was entitled to a § 3E1.1(b)
reduction, and then, 2) if he is, determining whether there is a
reasonable probability that the district court would have granted
him the reduction and sentenced him pursuant to a lower
guidelines range.
As discussed above at pp. 11-25, the district court's conclusion that Mr. xxxxxxx was not entitled to the additional one-level reduction was based on the court's erroneous factual findings that his plea was untimely. Those findings, together with the court's erroneous finding that defense counsel exercised his professional judgment in deciding not to argue for the additional one-level reduction, form the basis for the court's conclusion that it would not have granted Mr. xxxxxxx the reduction. However, once the criteria of § 3E1.1 (b) are met, the district court has no discretion in reducing the offense level by 1. See United States v. Mills, 9 F.3d at 1137; United States v. Colussi, 22 F.3d at 219. In this case, the one-level reduction would have reduced Mr. xxxxxxx' guideline range from 51 to 63 months to 46 to 57 months. APP 79. Since the district court sentenced Mr. xxxxxxx within the guideline range, albeit to the top of the range, Mr. xxxxxxx would have received a sentence of 57 months rather than 63 months.
Defendant's counsel failed to bring to the court's attention an amendment to the guidelines which would have given his client an additional one-level reduction in his offense level under the acceptance of responsibility provision of § 3E1.1(b). There was no tactical reason for failing to do so. Defense counsel was not precluded from requesting this reduction by a plea offer and the only possible consequence to such a request would be a shorter sentence for his client. Under these circumstances, defendant did not receive effective assistance of counsel. Defendant was prejudiced by this failure because he met the criteria outlined in § 3E1.1(b), and the district court would have had no discretion in reducing his guideline range. Defendant, therefore, respectfully requests this Court vacate his sentence and remand for resentencing.
Respectfully submitted,
TERESA ALVA
Assistant Federal Public Defender
Counsel for Appellant
625 Indiana Avenue, N.W., Ste. 550
Washington, D.C. 20004
(202) 208-7500
CERTIFICATE AS TO LENGTH OF BRIEF
I hereby certify that the foregoing brief contains no more
than the number of words allowed by Circuit Rule 28(d).
TERESA ALVA
Assistant Federal Public Defender
I HEREBY CERTIFY that two copies of the foregoing Brief of Appellant and one copy of the Appendix of Appellant were on this 1st day of March, 1996, served by hand-delivery upon John R. Fisher, Chief, Appellate Division, United States Attorney's Office, Room 10-435, 555 Fourth Street, N.W., Washington, D.C. 20001.
TERESA ALVA
Assistant Federal Public Defender
ADDENDUM TABLE OF CONTENTS
U.S.S.G. § 3E1.1(b)A-1