United States v. Reed.
No. 21-2073. 7/7/2022. D.N.M. Judge Baldock. Felon in Possession of a Firearm—Armed Career Criminal Act—Voluntariness of Plea—Alleged Ineffective Assistance of Counsel—District Court Jurisdiction of Predicate Felonies Determination—Procedural Due Process.
July 7, 2022
Defendant knowingly brought a handgun and several rounds of ammunition to an apartment in 2017. He was previously convicted in federal court of four felonies in 2004, all four of which were contained in a single judgment. In 2005, defendant was also convicted of a felony in state court. A grand jury indicted defendant for being a felon in possession of a firearm. A laboratory then found defendant’s DNA on the handgun, and defendant’s trial counsel was unable to locate any witness to support defendant’s version of events.
The government offered defendant a plea agreement, which stated that the maximum prison sentence he could receive was 10 years, unless the district court determined that he was an armed career criminal under the Armed Career Criminal Act (ACCA), in which case the minimum prison sentence would be 15 years and the maximum sentence would be life. Trial counsel discussed the potential sentencing enhancement under the ACCA, but mistakenly believed that defendant did not have the requisite number of felonies for an ACCA enhancement (three), and advised defendant based on this belief. Trial counsel did not promise defendant that the ACCA would not apply, however. Defendant entered the plea agreement at a change of plea hearing.
The Probation Office’s Presentence Investigation Report (PSR) concluded that defendant was subject to an enhanced sentence due to his three federal drug-trafficking convictions. Defendant then obtained new counsel and moved to withdraw his guilty plea. Following an evidentiary hearing at which former trial counsel and defendant testified, the district court denied defendant’s motion to withdraw his guilty plea. The court held that trial counsel’s performance was not constitutionally ineffective and defendant failed to demonstrate prejudice. Defendant’s objections to the PSR were overruled, and the court imposed the ACCA’s mandatory minimum sentence of 15 years. Defendant appealed.
The first claim on appeal was whether the district court committed reversible error by concluding defendant’s guilty plea was knowing and voluntary despite trial counsel’s erroneous advice. As a threshold matter, the Tenth Circuit first concluded that because the district court held an evidentiary hearing on the motion to withdraw guilty plea, the factual record was sufficiently developed to review the ineffective assistance claim on direct appeal.
The Tenth Circuit then applied the two-part ineffective assistance of counsel test from Strickland v. Washington, 466 U.S. 668 (1984). Under this test, defendant was required to show that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) counsel’s deficient performance resulted in prejudice. The Tenth Circuit concluded that defendant did not establish prejudice, so it did not consider the first prong. To show prejudice in the guilty plea context, a defendant must establish that there is a reasonable probability that, but for counsel’s errors, defendant would not have pleaded guilty and insisted on going to trial. Here, the Tenth Circuit held that defendant did not establish prejudice because (1) he pleaded guilty after being informed repeatedly that he could receive an ACCA enhancement, and (2) the circumstances did not suggest he would have gone to trial absent counsel’s erroneous advice. In particular, the prosecution’s case was strong, and even under the ACCA standard, the plea lowered the guideline sentence.
Defendant next argued that the district court lacked the power to decide whether the prior convictions were committed on different occasions because a jury must find facts which increase a defendant’s mandatory minimum sentence. The Tenth Circuit rejected this claim based on prior Tenth Circuit precedent, which provides that whether prior convictions happened on different occasions is not a fact required to be determined by a jury.
Third, defendant maintained that he had insufficient notice that the ACCA might apply before he pleaded guilty. The Tenth Circuit determined that defendant received due process because he had actual notice of the possibility of an ACCA enhancement in a reasonable time along with an opportunity to be heard concerning that status.
The district court’s judgment and sentence were affirmed.