United States v. Washington
619 F.3d 1252, 2010 WL 3786159 (2010)
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Rule of Law:
Ineffective assistance of counsel can be established where counsel fails to understand the basic structure and mechanics of the sentencing guidelines and therefore fails to provide effective advice to a defendant regarding the impact of relevant conduct on their potential sentence, resulting in prejudice. While a defendant may not have a Sixth Amendment right to the presence of counsel at a presentence interview, they do have a right to counsel's advice regarding the interview's nature and purpose and the impact of relevant conduct on sentencing.
Facts:
- In February 1991, Patrick E. Washington was indicted for three counts of distributing cocaine base and one count of using or carrying a firearm.
- Gary W. Long, II, an attorney with state court trial experience but no federal court experience, was retained to represent Washington.
- In May 1991, a jury convicted Washington on the three cocaine base distribution counts (totaling 61.98 grams) but acquitted him of the firearm charge.
- Prior to his sentencing hearing, Washington attended a presentence interview with a probation officer, during which Mr. Long did not accompany him nor inform him about the interview's purpose or legal significance.
- At the presentence interview, Washington admitted to a drug distribution sales pattern of 0.5-1.0 kg of cocaine base every three weeks for three months in 1990, resulting in an additional 2.5 kilograms attributed to him.
- A confidential government informant also provided information that Washington possessed and distributed approximately four kilograms of cocaine base between January and February 1991.
- Combining these amounts with his conviction, the probation officer determined Washington had distributed a total of 6.5 kilograms of cocaine base relevant to his sentence.
- Washington attempted to kill the informant before the trial.
Procedural Posture:
- In February 1991, Patrick E. Washington was indicted in federal district court for three counts of distribution of cocaine base and one count of using or carrying a firearm.
- Following a jury trial in May 1991, Washington was convicted on the three drug counts and acquitted of the firearm charge.
- The district court sentenced Washington to three forty-year terms of imprisonment to be served consecutively, for a total of 120 years, based on a base offense level of 40 with two enhancements.
- Washington, represented by appointed counsel, appealed his conviction and sentence to the Tenth Circuit, which affirmed in 1993.
- In 1994, Washington filed a post-conviction motion, part of which the district court recharacterized as a federal habeas petition under 18 U.S.C. § 2255 in 1996 and denied, which Washington did not appeal.
- In 1997, Washington filed another § 2255 motion, which the district court transferred to the Tenth Circuit as a request for authorization to file a second or successive motion, and the Tenth Circuit denied authorization.
- In 1999, Washington filed a Rule 60(b)(6) motion for relief, which the district court denied, and the Tenth Circuit (on appeal from that denial) vacated for lack of jurisdiction and denied authorization.
- In 2002, the district court granted Washington's motion to reduce his sentence based on a 1994 amendment to the sentencing guidelines, reducing his base offense level to 38 and his sentence to a total of thirty years concurrently.
- After the Supreme Court's Castro decision in 2003, Washington renewed a Rule 60(b)(5) motion, which the district court denied.
- The Tenth Circuit (on appeal from the Rule 60(b)(5) denial) reversed and remanded, authorizing Washington to file an initial § 2255 motion.
- Washington filed a new pro se § 2255 motion alleging five grounds for improper sentence, including ineffective assistance of counsel.
- In June 2008, the district court held an evidentiary hearing, where new claims of ineffective assistance of counsel regarding the presentence interview were raised.
- In November 2008, the district court held a second evidentiary hearing and subsequently denied Washington's § 2255 motion, finding against the plea bargain claim and denying relief on the presentence interview claim based on Tenth Circuit precedent in United States v. Gordon.
- Washington filed a notice of appeal and an application for a Certificate of Appealability (COA) to the Tenth Circuit.
- The Tenth Circuit initially granted a COA limited to the issue of counsel's error regarding the maximum sentence, and later expanded the COA to include whether counsel’s failure to understand relevant conduct and advise Washington on the presentence investigation meeting amounted to constitutionally deficient performance.
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Issue:
Does a criminal defense counsel's failure to understand the basic mechanics of federal sentencing guidelines and to advise a defendant on the impact of "relevant conduct" during a presentence interview constitute constitutionally deficient performance and prejudice under Strickland v. Washington, even if counsel's physical presence at the interview is not constitutionally required?
Opinions:
Majority - Seymour, Circuit Judge
Yes, a criminal defense counsel's failure to understand the basic mechanics of federal sentencing guidelines and to advise a defendant on the impact of "relevant conduct" during a presentence interview constitutes constitutionally deficient performance and prejudice under Strickland v. Washington. The court dismissed Washington's claim that his counsel was deficient regarding a plea offer, finding the district court's determination that no firm offer was made was supported by the record. Regarding the presentence interview, the court distinguished United States v. Gordon, which held that a presentence interview is not a "critical stage" requiring counsel's presence or advice. The court clarified that while a defendant does not have a right to counsel's physical presence at a presentence interview, they do have a right to counsel's advice regarding the impact of "relevant conduct" on sentencing and the nature and purpose of the interview. The court found Mr. Long's complete unfamiliarity with basic sentencing guideline mechanics, particularly "relevant conduct," and his failure to advise Washington regarding the presentence interview's ramifications, fell below an objective standard of reasonableness. Washington's admissions at the interview increased his attributable drug quantity from 4 kilograms to 6.5 kilograms. This additional amount rendered him ineligible for a two-level reduction under the 2007 Crack Cocaine Amendments (Amendment 706), which do not apply to offenses involving 4.5 kg or more. This loss of eligibility for a lower sentence constituted sufficient prejudice under Strickland.
Dissenting - Tacha, Circuit Judge
No, a criminal defense counsel's failure to understand the basic mechanics of federal sentencing guidelines and to advise a defendant on the impact of "relevant conduct" during a presentence interview does not constitute constitutionally deficient performance and prejudice under Strickland v. Washington because the presentence interview is not a "critical stage" of the proceedings where the Sixth Amendment right to counsel applies. Judge Tacha joined the majority in affirming the district court's finding that no firm plea offer was made. However, she dissented from the majority's conclusion regarding the presentence interview, arguing that the right to effective assistance of counsel is dependent on the right to counsel itself. She asserted that United States v. Gordon clearly established that the presentence interview is not a "critical stage" of criminal proceedings within the meaning of the Sixth Amendment. Therefore, if no constitutional right to counsel exists at that stage, there can be no deprivation of the right to effective assistance. The dissent criticized the majority for creating an "arbitrary distinction" between the right to advice before and during the interview and distinguished the cases cited by the majority as involving the plea bargaining process, which is a recognized critical stage, unlike the presentence interview. Judge Tacha maintained that the panel remains bound by Gordon's precedent.
Analysis:
This case significantly clarifies the scope of the Sixth Amendment right to effective assistance of counsel in federal sentencing proceedings, particularly concerning the presentence interview. It distinguishes between the right to presence of counsel at such an interview (which is not guaranteed) and the right to advice regarding its implications. By emphasizing counsel's duty to understand basic sentencing guideline mechanics and "relevant conduct," the court broadens the definition of deficient performance beyond mere miscalculation. The ruling highlights the critical importance of pre-interview advice, particularly given the potentially severe impact of a defendant's disclosures on their ultimate sentence, as illustrated by the loss of eligibility for guideline amendments. This decision places a higher burden on defense attorneys to provide informed guidance throughout the entire sentencing process, even for aspects where their physical presence isn't mandated.
