UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT





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NO. xxxxxxx

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REPLY BRIEF FOR APPELLANT



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UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxxxxxx, Defendant-Appellant.



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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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SUMMARY OF ARGUMENT

The government argues that defense counsel's failure to call any witnesses at the suppression hearing was a reasonable tactical decision based on counsel's conclusion that the witnesses' testimony would not have been favorable. This contention is not supported by the record in this case, which indicates that up until the beginning of the suppression hearing, counsel intended to call two eyewitnesses, the defense investigator, as well as Mr. xxxxxxxx himself. The record does not establish -- and the government fails to explain -- why defense counsel abandoned this strategy when the eyewitnesses refused service of subpoenas and the defense investigator failed to appear on the second day of the hearing. Since one of the witnesses indicated that the police were applying pressure on him not to cooperate with the defense, reasonably competent counsel would have asked the district court to compel the attendance of the defense witnesses and to conduct an evidentiary hearing on the issue of police intimidation. However, counsel for Mr. xxxxxxxx failed to request a hearing on this issue and merely proceeded with the suppression hearing without putting on any evidence whatsoever.

Although the record does not conclusively establish that counsel's errors prejudiced Mr. xxxxxxxx, counsel's failure to secure the appearance of critical witnesses to testify at the suppression hearing, particularly considered in light of the allegations of police intimidation, tends to undermine confidence in the district court's suppression ruling. Therefore, in accordance with this Court's normal practice, this case should be remanded to the district court for an evidentiary hearing to develop a full factual record on Mr. xxxxxxxx's ineffectiveness claim.

The government also contends that defense counsel did not provide ineffective assistance at Mr. xxxxxxxx's sentencing by failing to request a downward adjustment for his mitigating role in the offense under U.S.S.G. 3B1.2. This argument is based on the false premise that this Court's decision in United States v. Soto, 132 F.3d 56, 58-60 (D.C. Cir. 1997), which clearly entitles Mr. xxxxxxxx to a remand for resentencing because his lawyer failed to request a 3B1.2 downward adjustment, is invalid because it effectively overturned this Court's previous decisions interpreting 3B1.2. The government's interpretation of this line of cases is fundamentally flawed as Soto is consistent with the earlier cases interpreting this guideline provision.

The undisputed evidence in this case establishes that Mr. xxxxxxxx acted as a drug courier in a single transaction involving at least three other participants and that his participation was relatively minimal or minor. The evidence indicates that Mr. xxxxxxxx did not know the person who gave him the concealed package containing drugs or the person to whom he was to deliver the drugs. Moreover, the evidence shows that Mr. xxxxxxxx did not know for certain that the concealed package contained drugs and that he did not know the quantity or the nature of the drugs contained in the package. The record contains no evidence whatsoever that Mr. xxxxxxxx was involved in the overall drug scheme or in an ongoing, larger drug conspiracy. Therefore, the record conclusively shows that defense counsel's failure to request a 3B1.2 adjustment for Mr. xxxxxxxx's mitigating role in the offense constitutes ineffective assistance. Under these circumstances, this case should be remanded to the district court for further fact-finding at a resentencing to determine whether Mr. xxxxxxxx is entitled to a downward adjustment under 3B1.2.



The government argues that defense counsel's failure to present at the suppression hearing the testimony of three witnesses -- Mr. Hodgkins, Ms. Martin, and the defense investigator -- was a reasonable tactical decision because none of those witnesses was capable of supporting the defense suppression theory. (Gov. Br. 16-19) The government's assertion is based on the faulty premise that counsel made a strategic decision not to put on any defense witnesses at the suppression hearing. However, the record indicates that this is not what occurred. Instead, counsel attempted to secure the attendance at the hearing of all three of the witnesses but did not take reasonable steps to compel their appearances when eyewitnesses Hodgkins and Martin refused subpoenas and the investigator failed to show up on the second day of the hearing. Counsel's attempts to secure the testimony of the defense witnesses directly contradicts the government's claim that counsel reasonably concluded to forego their testimony.

The record reflects that defense counsel's strategy was to call at least three witnesses to testify at the suppression hearing. At a status hearing held nine days before the suppression hearing, counsel represented that the defense would put on up to three witnesses. (8/5/97 Tr. 3) In fact, at the beginning of the suppression hearing itself, counsel explained to the court that the defense intended to call three to four witnesses but that the civilian witnesses had refused service of subpoenas. (8/14/97 Tr. 3-5) Contrary to the government's assertion that "[n]either civilian witness remembered anything about appellant's stop . . ." (Gov. Br. 17), the record indicates that, at a minimum, Hodgkins was present when the police stopped Mr. xxxxxxxx and "had a recollection of what happened but could not be more specific." (8/14/97 Tr. 3) Counsel also represented that Hodgkins had indicated to the defense investigator that the police were pressuring him not to testify at the hearing. (Id.) Since defense counsel, who personally interviewed Hodgkins, intended to call him as a witness, counsel apparently had reason to believe that Hodgkins would provide favorable testimony if called as a witness and placed under oath, notwithstanding the police pressure. Similarly, counsel's representations concerning the other eyewitness, Ms. Martin, implied that she also had initially provided favorable information but later developed a faulty memory. ("[Martin's] most recent statement concerning these events is that she does not have an accurate memory, and that her testimony would not be useful.") (Id. at 4(emphasis added)). Counsel's attempts to subpoena Hodgkins and Martin make little sense if he had concluded, as the government maintains, that the witnesses had no relevant or favorable testimony to present. Since at least one of the witnesses had indicated the police were applying pressure on him, reasonably competent defense counsel would have asked the court to compel the attendance of the defense witnesses and to conduct an evidentiary hearing on the issue of police intimidation. Notably, the government's argument omits any discussion whatsoever of counsel's failure to address the question of whether the police pressure violated Mr. xxxxxxxx's right to compulsory process of witnesses and to present a defense.

As to the defense investigator, the government's point that the investigator's testimony would not have been helpful because he "knew no more than the civilian witnesses[,]" speaks the obvious but proves nothing. (Gov. Br. 17 n. 7) Once again, the record indicates that defense counsel intended to call his investigator to testify at the hearing. (8/14/97 Tr. 3-4; 8/15/97 Tr. 2) In fact, on the second day of the hearing, counsel represented that he had called his investigator at home but was advised that the investigator had gone to the bus station, apparently to locate or subpoena a witness. (8/15/97 Tr. 2) If Hodgkins and Martin had provided favorable information to the investigator, as suggested by counsel's representations, counsel undoubtedly intended to elicit that evidence through the investigator's testimony in the absence of those witnesses. Perhaps, counsel also planned to have the investigator testify as to Hodgkins' statements concerning police intimidation. In any event, the record does not support the government's claim that defense counsel made a tactical decision not to call the investigator as a witness at the hearing.

In its argument, the government fails to explain why defense counsel's strategy would have changed at the suppression hearing itself. Counsel would not have sought to call the eyewitnesses and the defense investigator up until the beginning of the hearing unless they were going to support the defense suppression theory. Reasonably competent counsel would not devise a suppression hearing strategy based upon irrelevant and unfavorable testimony. The record does not support the government's claim that counsel simply changed his mind and reasonably decided not to call any witnesses. Instead, the record supports the conclusion that counsel failed to compel testimony that he had determined was sufficiently relevant and significant to justify several attempts to subpoena the witnesses and produce them in court.

It is settled that an accused is entitled to reasonably competent assistance of counsel "acting as a diligent conscientiousness advocate." United States v. Moore, 554 F.2d 1086, 1089 (D.C. Cir. 1976) (internal quotations omitted)(quoting United States v. DeCoster, 487 F.2d 1197, 1202 (D.C. Cir. 1973)). Because the record does not conclusively show that counsel's failure to call any defense witnesses at the suppression hearing was a reasonable tactical decision, Mr. xxxxxxxx is entitled to an evidentiary hearing in the district court to develop a full record on this point. See United States v. Glover, 153 F.3d 749, 758 (D.C. Cir. 1998)("[w]here, as here, the defendant has not sought to develop a factual record of ineffectiveness in the district court, our normal practice is to remand for an evidentiary hearing") (additional citation omitted).

The government's reliance on cases holding that counsel is not required to subpoena witnesses whose testimony is incredible or merely tangential (Gov. Br. 17-18), is misplaced because defense counsel here did attempt to subpoena witnesses and, therefore, necessarily concluded that their testimony was credible and relevant. Similarly, competent counsel need not seek a continuance to secure unfavorable witnesses. (Gov. Br. 18) However, because the record does not indicate that counsel for Mr. xxxxxxxx had concluded that the defense witnesses were incredible or unfavorable, counsel's failure to seek a continuance of the suppression hearing was not objectively reasonable under the circumstances. See Code v. Montgomery, 799 F.2d 1481, 1485 (11th Cir. 1986) (failure to request continuance to secure alibi testimony constituted ineffective assistance of counsel). Therefore, contrary to the government's argument, counsel did not make a reasonable tactical decision to forego an affirmative defense and rely exclusively on cross-examination of experienced police witnesses. (Gov. Br. 18-19) Instead, counsel's failure to secure the attendance of witnesses he intended to call at the hearing left him without any viable defense strategy and the virtually insurmountable task of presenting the defense suppression theory through cross-examination of adversarial police witnesses.

The government's citation of other cases in which this Court has rejected ineffective assistance claims is not persuasive because those cases are clearly distinguishable on their facts. (Gov. Br. 19) For example, in United States v. Morrison, 98 F.3d 619, 622-26 (D.C. Cir. 1996), cert. denied, 117 S. Ct. 1279 (1997), the defendant claimed that his counsel was ineffective for failing to object to the admission of a taped conversation between the defendant and a jail visitor. Thus, the ineffective assistance claim did not involve any failure to subpoena or produce witnesses. In two of the other cited cases, United States v. Debango, 780 F.2d 81, 84-85 (D.C. Cir. 1986), and Gray v. United States, 299 F.2d 467 (D.C. Cir. 1962), the defendants had raised their ineffectiveness claims in new trial motions so that the records were clear as to the proposed defense witnesses' testimony. In Debango, although this Court found counsel's failure to interview proposed witnesses to be "troublesome," it held that the defendant did not establish prejudice because the record indicated that the district court had implicitly found that the prospective defense testimony would not have affected the outcome of the trial. 780 F.2d at 84-85.

In Gray, the Court affirmed the district court's denial of the defendant's ineffectiveness claim because affidavits submitted from prospective alibi witnesses who were not subpoenaed by defense counsel conflicted with the defendant's own trial testimony. 299 F.2d at 468.

Finally, the government's contention that counsel's advice to Mr. xxxxxxxx not to testify at the suppression hearing also was a reasonable tactical decision fails to acknowledge that the advice was based on counsel's failure to obtain the testimony of any corroborating witnesses. In fact, counsel represented to the district court that Mr. xxxxxxxx chose not to testify because he was concerned that if he was the only defense witness to contradict the police testimony, the court might find his testimony incredible and enhance any sentence he might ultimately receive in the case. (8/15/97 Tr. 2-3) Thus, counsel's advice to Mr. xxxxxxxx not to testify at the hearing was no more reasonable than counsel's decision not to compel the testimony of corroborating defense witnesses. Given the anticipated testimony of the police witnesses at the hearing, counsel's failure to present any evidence whatsoever was not objectively reasonable.

The government argues that Mr. xxxxxxxx has failed to establish prejudice under the second prong of the test enunciated in Strickland v. Washington, 466 U.S. 668, 694 (1984). (Gov. Br. 20-21) To prove prejudice under this test, Mr. xxxxxxxx must show that counsel's errors undermined confidence in the district court's suppression ruling. Id. at 693-94. Because defense counsel failed to make a full proffer as to the anticipated testimony of the prospective defense witnesses, the record does not conclusively establish prejudice. Therefore, in accordance with this Court's general practice, Mr. xxxxxxxx requests a remand for an evidentiary hearing on his ineffectiveness claim. (See Def. Br. 37-38)

Counsel's failure to secure the appearances of witnesses, particularly considered in conjunction with counsel's representations to the court suggesting that the eyewitnesses changed their initially favorable testimony due to police pressure, tends to undermine confidence in the district court's suppression ruling. To be sure, counsel's representations were lacking in substance and detail. However, counsel's failure to make an adequate record in the district court cannot fairly defeat Mr. xxxxxxxx's ineffectiveness claim. The Court should not sanction such an anomalous result.

As part of its argument that the record does not establish any prejudice, the government faults Mr. xxxxxxxx for failing to raise his ineffectiveness claim in a habeas petition under 28 U.S.C. 2255. (Gov. Br. 21) In fact, this Court denied Mr. xxxxxxxx's motion to hold his appeal in abeyance pending the filing and disposition of a post-conviction motion. However, by raising his ineffectiveness claim on direct appeal and requesting a remand for an evidentiary hearing to develop the record on this issue, Mr. xxxxxxxx is requesting the same relief he would have sought in a 2255 motion. See United States v. Barnes, 158 F.3d 662, 673 (2d Cir. 1998) (appellate court can consider on direct appeal claim cognizable under 28 U.S.C. 2255 "without the necessity of defendant's bringing an additional proceeding.") (internal quotations omitted) (quoting United States v. Restrepo, 986 F.2d 1462, 1463 (2d Cir.), cert. denied, 510 U.S. 843 (1993)). Thus, Mr. xxxxxxxx asks this Court for an opportunity to develop a more complete record of ineffectiveness in the district court, in accordance with this Court's normal practice. See Glover, 153 F.3d at 758.

C. A Remand is Required Because the Record is Inconclusive on the Ineffectiveness Claim

While acknowledging this Court's general practice to remand ineffectiveness claims made on direct appeal, the government contends that remand is not required here because the record conclusively shows that counsel's failure to secure the attendance of defense witnesses at the suppression hearing was a reasonable tactical decision. (Gov. Br. 22-25) The government's reliance on Glover in support of this argument is misplaced because the record in that case clearly showed that counsel's failure to cross-examine a government informant as to a prior arrest did not constitute ineffective assistance because counsel made a reasonable tactical decision to elicit the same information through cross-examination of another witness. See Glover, 153 F.3d at 758.

In contrast, the record in the instant case does not clearly establish that counsel's failure to secure the attendance of critical defense witnesses at the suppression hearing was a tactical decision. There remain many unanswered questions concerning alleged police intimidation of seemingly cooperative witnesses who refused service of subpoenas to testify. Under these circumstances, a remand for a full evidentiary hearing in the district court to develop an adequate factual record on Mr. xxxxxxxx's ineffectiveness claim is required under this Court's settled case law. See United States v. Fennell, 53 F.3d 1296, 1303-04 (D.C. Cir. 1995); United States v. Poston, 902 F.2d 90, 99 n.9 (D.C. Cir. 1990).

II. DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE AT SENTENCING BY FAILING TO REQUEST A DOWNWARD ADJUSTMENT FOR MR. xxxxxxxx'S MITIGATING ROLE IN THE OFFENSE UNDER U.S.S.G. 3B1.2

A. Mr. xxxxxxxx was Entitled under Settled Circuit Law to Have the District Court Consider a Downward SentenceAdjustment for his Minimal or Minor Role in the Offense

In his opening brief, Mr. xxxxxxxx argued that under this Court's decision in United States v. Soto, 132 F.3d 56, 58-60 (D.C. Cir. 1997), his counsel's failure to request a downward adjustment under U.S.S.G. 3B1.2 constituted ineffective assistance and entitled him to a remand for resentencing. (Def. Br. 35-37) The government concedes that if Soto is "valid," Mr. xxxxxxxx is indeed entitled to the requested remand. (1) (Gov. Br. 28) However, without any support in the case law, the government argues that Soto effectively overturned this Court's previous decisions in United States v. Olibrices, 979 F.2d 1557 (D.C. Cir. 1992), and United States v. Caballero, 936 F.2d 1292 (D.C. Cir. 1991), cert. denied, 502 U.S. 1061 (1992). (Gov. Br. 28) The government's interpretation of this line of cases is fundamentally flawed. Contrary to the government's analysis, Soto is consistent with both Olibrices and Caballero. In fact, the Soto court cites to both of those previous decisions without any attempt to distinguish or reconcile them. 132 F.3d at 58-59. The government appears to argue that the Soto panel overruled binding Circuit precedent without so much as a single reference to any conflict with the decisions it ostensibly was overturning. In making this argument, the government seriously misreads the applicable cases.

The government erroneously contends that Caballero and Olibrices stand for the proposition that a defendant is not entitled to an adjustment under 3B1.2 unless the sentencing court takes into account "relevant conduct" within the meaning of U.S.S.G. 1B1.3 in setting that defendant's base offense level. (Gov. Br. 27-31) Because the court in Soto held that the defendant, a drug courier involved in a single drug transaction, was eligible for a downward adjustment under 3B1.2 even though her base offense level was not set with reference to any relevant conduct, the government maintains that "Soto turned Olibrices, Caballero, and the Guidelines on their heads." (Gov. Br. 30) This contention misconstrues all three cases and fails to distinguish between cases in which a defendant is involved in a broad drug conspiracy but is convicted only of more narrow conduct, on the one hand, and cases in which a defendant is convicted of conduct that reflects his entire involvement in the criminal scheme, on the other. Under this Circuit's settled law, defendants in both categories of cases are eligible for 3B1.2 adjustments if the evidence before the sentencing court indicates that the overall criminal conduct for which the defendant otherwise would be held accountable involves multiple participants and that the defendant is less culpable than the other participants. A brief discussion of the applicable cases supports this conclusion.

In Olibrices, the defendant was originally charged in a larger drug conspiracy but then, pursuant to a plea agreement, pled guilty to a more limited conspiracy involving a single drug importation. 979 F.2d at 1558-59. Because the sentencing court did not take into account the relevant conduct relating to the larger conspiracy in establishing the defendant's base offense level, this Court affirmed the district court's denial of an adjustment under

3B1.2, noting that, "[t]o take the larger conspiracy into account only for purposes of making a downward adjustment in the base level would produce the absurd result that a defendant involved both as a minor participant in a larger distribution scheme, for which he was not convicted, and as a major participant in a smaller scheme for which he was convicted, would receive a shorter sentence than a defendant involved solely in the smaller scheme." Id. at 1560. See also United States v. Burnett, 66 F.3d 137, 140-41 (7th Cir. 1995) (defendant who was "long-term courier" in ongoing drug conspiracy but was held accountable only for drugs he actually transported was not entitled to 3B1.2 downward adjustment as minor participant in drug scheme).

Based on the narrow holding in Olibrices, which involved a very specific and somewhat unusual factual scenario, the government extrapolates that drug couriers are never entitled to a 3B1.2 adjustment unless they were involved in a larger distribution scheme for which they were not convicted and the sentencing court takes into account the relevant conduct relating to the larger scheme in setting the base offense level. (Gov. Br. 28-31) This analysis produces its own "absurd result" as only defendants involved in larger drug conspiracies would be eligible for 3B1.2 adjustments while arguably less culpable defendants involved in narrow, single-act drug schemes would never be entitled to a downward adjustment for minimal or minor role in the offense. Contrary to the government's strained interpretation, Olibrices stands for the simple proposition "that a defendant is not entitled to have her sentence reduced for a minimal role in relevant conduct that had no part in the calculation of the base offense level." Id. at 1561. Because the undisputed evidence in the instant case establishes that Mr. xxxxxxxx acted as a courier for a single drug transaction and was not involved in any broader drug conspiracy, Olibrices is largely inapposite.

In contrast with the facts in Olibrices, the facts in both Caballero and Soto are similar to those in the instant case. In Caballero, which was decided before Olibrices, (2) the defendant acted as a drug courier in a single smuggling transaction. 936 F.2d at 1294. In rejecting the government's argument that as a matter of law Mr. Caballero could not have been a minor participant because the crime did not involve any other participants, the court held that to find that the defendant is entitled to a 3B1.2 adjustment, the evidence available to the sentencing court must show that the relevant conduct for which the defendant otherwise would be accountable involved more than one participant and that the defendant's culpability for such conduct was relatively minor compared to that of the other participants. Id. at 1299. See also United States v. Snoddy, 139 F.3d 1224, 1229-1232 (8th Cir. 1998) (adopting Caballero's two-prong test); United States v.Demers, 13 F.3d 1381, 1383-86 & n. 6 (9th Cir. 1994) (citing Caballero and distinguishing Olibrices).

In Soto, the court simply applied Caballero in the context of an ineffective assistance of counsel claim. Based upon evidence that Mr. Soto acted as a courier in a single drug transaction, the court held that her lawyer's failure to request a downward adjustment under 3B1.2 constituted ineffective assistance. 132 F.3d at 58-59. Quoting Caballero, 936 F.2d at 1299, the court remanded Soto's case for resentencing since "[t]he application of section 3B1.2 is inherently fact-bound and largely committed to the discretion of the trial judge." Id. at 59. Contrary to the government's argument (Gov. Br. 30), the decision in Soto is not premised on the supposition that drug couriers presumptively are eligible for a 3B1.2 downward adjustment. Instead, the court's ineffective assistance finding was based on the particular facts in that case which indicated that Soto was a minimal or minor participant and that her attorney failed to request an appropriate adjustment for her mitigating role in the offense.

Because the instant case involves analogous facts, Soto is controlling. Like Ms. Soto, Mr. xxxxxxxx also was "recruited as a courier for a single smuggling transaction" and "lack[ed] knowledge or understanding of the scope and structure of the enterprise . . . ." Soto, 132 F.3d at 59 (quoting 3B1.2 comment. n. 1 & 2)(internal quotations omitted). Since Mr. xxxxxxxx also was eligible for "serious consideration" under 3B1.2, Soto, 132 F.3d at 59, his counsel's failure to even raise the issue constitutes constitutionally ineffective assistance.

The government erroneously argues that since Soto is invalid, counsel for Mr. xxxxxxxx could not have rendered ineffective assistance for failing to request a 3B1.2 adjustment which was not available under Olibrices and Caballero. (Gov. Br. 31-35) Because the government's analysis is based on the false premise that Soto does not apply, its conclusion that Mr. xxxxxxxx has failed to establish either of the Strickland prongs must be rejected. (3)

As part of its argument, the government claims that Mr. xxxxxxxx has not alleged sufficient facts to prove prejudice under the second Strickland prong. (Gov. Br. 33-35) In making this assertion, the government fails to acknowledge the undisputed evidence in the record establishing that: (1) Mr. xxxxxxxx's actual offense conduct involved a single drug transaction (PSR at 3); (2) the drug scheme involved at least three other participants -- the family friend in Chicago who asked Mr. xxxxxxxx to travel to Cleveland to pick up a package, the person in Cleveland who gave the package to Mr. xxxxxxxx, and the person to whom he was to deliver the package in Washington, D.C. (8/14/97 Tr. 68-70; 9/8/97 Tr. 8-9; PSR at 4); (3) Mr. xxxxxxxx did not know for certain that a concealed package inside the black tote bag he received in Cleveland contained drugs (8/14/97 Tr. 69; PSR at 4); (4) Mr. xxxxxxxx did not know the quantity or nature of the drugs contained in the package (9/8/97 Tr. 10); and (5) Mr. xxxxxxxx did not know the person who gave him the drugs or the person to whom he was to deliver them (8/14/97 Tr. 68-69; 9/8/97 Tr. 9; PSR at 4). The record contains no evidence that Mr. xxxxxxxx was involved in the overall drug scheme or in an ongoing, larger drug conspiracy.

Thus, the record shows by at least a preponderance of the evidence that Mr. xxxxxxxx qualifies as a minimal or minor participant in the offense. The conduct concerning the overall drug scheme for which he otherwise would be accountable involved at least three other participants and his culpability as the one who merely transported the drugs without knowledge of their quantity or nature is relatively minor compared to that of the person who recruited him to pick up the drugs, the one who provided him the drugs, and the individual to whom he was to deliver them. Contrary to the government's contention (Gov. Br. 34-35), Mr. xxxxxxxx does not claim that his role as a drug courier alone qualifies him for a 3B1.2 adjustment -- an argument that is clearly foreclosed by Caballero, 936 F.2d at 1299. Instead, Mr. xxxxxxxx bases his entitlement to an adjustment on the evidence in the record that satisfies Caballero's two-prong test. The evidence in this case clearly distinguishes it from the facts in United States v. Gordon, 895 F.2d 932, 935-36 (4th Cir.), cert. denied, 498 U.S. 846 (1990), upon which the government relies, as there was no evidence in that record of any participants other than the defendant, who denied that he was delivering the drugs to anyone else. In contrast, this record supports Mr. xxxxxxxx's entitlement to a downward adjustment for his mitigating role in the offense.

Finally, the government argues that because this Court decided Soto after the sentencing in this case, defense counsel could not have been ineffective for his failure to anticipate that Soto would change the existing law concerning 3B1.2 adjustments. (Gov. Br. 35-36) Since Soto is consistent with the earlier decisions in Caballero and Olibrices, the government's contention is without merit. In light of the clear case law in this Circuit at the time of Mr. xxxxxxxx's sentencing, the undisputed evidence in the record establishing that Mr. xxxxxxxx was less culpable than the other participants in the drug scheme should have alerted counsel to request a downward adjustment. Whether or not Mr. xxxxxxxx would have ultimately prevailed on this point at sentencing, reasonably competent counsel would have raised it for the sentencing court's consideration. Counsel's failure to request a 3B1.2 adjustment undermines confidence in the sentence imposed by the district court and requires a remand for resentencing.

CONCLUSION

For the foregoing reasons, as well as those set forth in Mr. xxxxxxxx's opening brief, this Court must remand the case to the district court to conduct an evidentiary hearing on the claim that counsel rendered ineffective assistance at the suppression hearing. Furthermore, the district court should determine at a resentencing whether Mr. xxxxxxxx is entitled to a downward adjustment under 3B1.2.

Respectfully submitted,

A. J. KRAMER

FEDERAL PUBLIC DEFENDER







NEIL H. JAFFEE

Assistant Federal Public Defender

On Behalf of Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500







CERTIFICATE OF LENGTH

I hereby certify that the foregoing reply brief for appellant, Opeyemi M. xxxxxxxx, does not exceed the number of words

permitted pursuant to D. C. Circuit Rule 28(d).

NEIL H. JAFFEE

Assistant Federal Public Defender


CERTIFICATE OF SERVICE



I HEREBY CERTIFY that on January 6, 1999, I have served by first-class mail, postage prepaid, two copies of the foregoing Reply Brief for Appellant Opeyemi M. xxxxxxxx, on Assistant United States Attorney Sarah T. Chasson, Appellate Division, United States Attorney's Office, 555 Fourth Street, N.W., Room 8104, Washington, D.C. 20001.







NEIL H. JAFFEE

Assistant Federal Public Defender

1. Appellant agrees with the government's guideline calculations concerning the application of 3B1.2. (See Gov. Br. 27 n. 10) Rather than the maximum eighteen-month reduction referred to in appellant's opening brief, application of 3B1.2 could have reduced Mr. xxxxxxxx's sentence by as much as twenty-seven months (4-point adjustment) or by a maximum of fifteen months (2-point adjustment).

2. Significantly, the Olibrices court noted that its decision in Caballero was not "contrary" to the holding in Olibrices. 979 F.2d at 1560. Thus, the Olibrices decision did not alter Caballero's holding that a drug courier could be entitled to a downward adjustment under 3B1.2 provided that the evidence established that the offense involved more than one participant and that the defendant's participation was relatively minimal or minor.

3. The government maintains that Soto also conflicts with Strickland because this Court found ineffective assistance even though Ms. Soto did not establish the requisite prejudice. (Gov. Br. 31 n. 11) Contrary to the government's assertion, the Soto court made a specific finding that the defendant satisfied the Strickland prejudice test. 132 F.3d at 59. In making this argument, the government also applies the wrong prejudice standard. To establish prejudice in this context, Ms. Soto did not have to prove that the sentencing court would have granted a downward adjustment if her counsel had requested one. Instead, she had to show that counsel's performance was so deficient as to "undermine confidence in the outcome" of the proceeding. See United States v. Graham, 91 F.3d 213,220(D.C.Cir.1996)(additional citation and quotations omitted), cert. denied, 117 S. Ct. 1003 (1997).