Parsley v. United States , 604 F.3d 667 ( 2010 )

United States Court of Appeals
For the First Circuit
No. 09-1690
JOSEPH PARSLEY
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Jeanne M. Kempthorne for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
May 17, 2010
LYNCH, Chief Judge. Joseph Parsley was convicted for his
role in a massive drug importation and distribution conspiracy in
Maine. He was sentenced to eighty-seven months' imprisonment.
Later, he filed a motion under 28 U.S.C. § 2255 in the district
court to vacate his sentence, on the ground that he had not been
properly advised by his trial counsel on the option of not going to
trial but instead entering an "open" guilty plea and then
contesting at sentencing the quantity of drugs attributable to him.
This, Parsley argues, was a constitutionally deficient performance,
under the first prong of Strickland v. Washington, 466 U.S. 668(1984). Parsley claims that because he did not fully consider this
option, and indeed because trial counsel did not urge it, he did
not plead and so was denied the opportunity for a two-level
reduction for acceptance of responsibility in his Sentencing
Guidelines offense level. We affirm the district court's
conclusion that trial counsel did not render ineffective assistance
on these facts, which are largely uncontested and not clearly
erroneous.
I.
We take the facts as found by the district court and
based on the uncontested portions of the record. To the extent any
of the district court's findings of fact are in dispute, we
conclude there was no clear error.
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On October 13, 2005, Parsley was indicted along with ten
other defendants for, inter alia, conspiracy to import marijuana
from a place outside the United States, under 21 U.S.C.
§§ 960(b)(2), 963, and conspiracy to distribute and possess with
the intent to distribute marijuana, under 21 U.S.C. §§ 841, 846.
The conspiracy lasted from November 2003 to June 2005 and involved
the importation of marijuana from Canada. Parsley's role was
limited to that of a courier, picking up and transporting the drugs
after the drugs arrived in the United States.
Parsley was arrested in New York on November 4, 2005, and
was initially represented by a New York lawyer. This lawyer in
turn asked trial counsel, a Maine attorney with about twenty years
of experience specializing in criminal defense, to act as local
counsel in proceedings in the district of Maine. Parsley paid
trial counsel a flat fee, which was not contingent on whether the
case went to trial.
Plea negotiations followed. Both sides believed that the
government had a strong case against Parsley. In the negotiations,
the government insisted that Parsley accept responsibility for at
least 750 kilograms of marijuana if there was to be a plea
agreement. Parsley refused. That 750 kilograms of marijuana
corresponded to the total amount of marijuana that had been seized;
the government believed it could prove a much larger amount if put
to its proof. Having reviewed discovery materials with his
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lawyers, Parsley insisted that he was responsible for a lesser
quantity of drugs than 750 kilograms. The government refused to
lower the drug quantity in the bargaining, and Parsley was
counseled by the New York lawyer to take the plea agreement.
As these plea negotiations broke down, Parsley decided to
proceed with Maine counsel alone. Parsley believed that the New
York lawyer simply "wanted to get rid of the case" and was not
willing to make further efforts without receiving more money. When
he agreed to take the lead role, the Maine trial counsel decided
not to ask for additional compensation.
At the time trial counsel took over the case, Parsley was
determined to take the case to trial if he could not get a
satisfactory plea agreement with the government. Parsley's New
York lawyer had missed some deadlines on filing suppression
motions, which trial counsel immediately turned to addressing.
Maine counsel's understanding was that at this point Parsley had no
interest in pleading guilty, and there was, as a result, only
limited further discussion about a guilty plea.
Nonetheless, counsel did discuss with Parsley his
different options and the possible sentencing ramifications of
those choices. Counsel explained the possibility of receiving a
sentencing reduction for acceptance of responsibility. Counsel
also discussed with Parsley the possibility of making an open
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guilty plea and then contesting the drug quantity numbers at
sentencing.
Having reviewed the government's evidence, counsel
advised Parsley that challenging the drug quantity at sentencing
would be a risky strategy because the government would only have to
prove drug quantity under the preponderance-of-the-evidence
standard. Trial counsel believed that the government could prove
a larger drug quantity than 750 kilograms. He also informed
Parsley that forcing the government to prove drug quantity could be
enough to prevent Parsley from receiving an acceptance-of-
responsibility reduction. Counsel testified that although he
always discussed with his clients the possibility of pleading
guilty and contesting the drug quantity at sentencing, "I don't
know that I would ever recommend for somebody to do it."
Trial counsel did, however, have some difficulty
convincing Parsley that pleading in federal courts worked
differently from what Parsley had experienced in New York state
court. Parsley believed that he could agree with prosecutors to a
specific sentence. Counsel testified that Parsley never believed
him that in federal court, even after reaching an agreement with
the government, the district court itself would make its own
findings on drug quantity and the appropriate sentence.
At some point before trial, the federal prosecutor on the
case held a "reverse proffer" with Parsley and counsel, during
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which the prosecutor presented to Parsley the evidence the
government would introduce at trial. Parsley had requested a
meeting with the federal prosecutor because he wanted to negotiate
a lower sentence, and trial counsel believed the meeting would help
Parsley understand the reality of his situation.
The federal prosecutor held the meeting because he felt
that the evidence in the case was overwhelming and wanted to make
sure that Parsley understood the consequences of going to trial.
At this point, all of the other defendants in the conspiracy had
pled guilty. The prosecutor made clear to Parsley in this meeting
that the government was not willing to negotiate a lower drug
quantity and that if Parsley elected to go to trial, the government
could prove an even larger amount. The prosecutor also told
Parsley that if Parsley's concern was only the quantity with which
he was being charged, Parsley had the option of pleading guilty and
then contesting the quantity at sentencing.
Parsley later testified that following the meeting he was
confused by the prosecutor's statement that Parsley could plead
guilty and just contest the drug quantity at sentencing. But
Parsley apparently believed trial counsel's advice regarding the
risks associated with this course of action. Although Parsley had
earlier reconsidered pleading guilty due to pressure from his
family, on realizing that he could not convince the government to
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lower his sentence by lowering the drug quantity by agreement,
Parsley was determined to go to trial.
Parsley also testified that he decided to go to trial in
order to contest the drug quantity, but the district court rejected
this claim. Trial counsel testified he would never advise a client
to follow such a strategy and that he did not do so in this case,
and the district court credited this testimony.
On December 14, 2006, Parsley was convicted by a jury on
all counts following a four-day trial. Parsley's counsel's two-
pronged trial strategy was to attack the credibility of the
government's witnesses and to portray Parsley in as positive a
light as possible. Consistent with trial counsel's testimony about
his advice to Parsley, the defense did not at trial attempt to
contest the quantity of drugs involved in the case.
Because of disagreements with trial counsel over how to
approach his sentencing, Parsley sought assignment of other counsel
and was provided with representation from the local federal public
defender's office at his June 8, 2007, sentencing hearing. At that
hearing, Parsley sought a sentence of seventy months; the
government sought a sentence of ninety-seven months, which was at
the bottom of the range recommended in Parsley's presentence report
("PSR").
Parsley's PSR found that Parsley was responsible for only
428.36 kilograms of marijuana, based on the quantity Parsley
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personally transported, rather than the conspiracy-wide amount on
which the federal prosecutor had relied during the reverse
proffer.1 The PSR also recommended a sentencing level reduction
for Parsley's minor role in the conspiracy. The government did not
challenge either recommendation.
At sentencing, the federal public defender for Parsley
acknowledged that it was a very rare case in which a defendant
benefitted from trying to dispute sentencing issues during trial.
He said his client was truly remorseful, and he attempted to
reconcile the tension between that remorse and Parsley's failure to
plead guilty by saying his client may have been confused that a
plea agreement was needed just to have entered a plea. He
acknowledged that his client had indeed met with the prosecutor who
had laid out the government's potential case against Parsley. At
no time did the federal public defender say Parsley's trial counsel
had rendered ineffective assistance or ask the court not to go
forward with sentencing.
The district court adopted both PSR recommendations and
departed downward one level from the PSR's recommended criminal
history category. The court sentenced Parsley to eighty-seven
1
The government tells us in a footnote that Parsley's
sentence ended up more or less where it would have been if Parsley
had pled guilty to 750 kilograms but then received the two level
reduction for acceptance of responsibility. The government uses
this to argue that Parsley suffered no prejudice in any event.
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months' imprisonment, at the bottom of his Sentencing Guidelines
range.
Nine months later, Parsley filed a motion, pursuant to 28
U.S.C. § 2255, to vacate, set aside, or correct his sentence. This
motion raised a number of claims, including an argument that trial
counsel had provided ineffective assistance, causing Parsley to go
to trial rather than make a guilty plea that would have provided a
basis for Parsley to argue for a two-level sentencing reduction for
acceptance of responsibility. On November 13, 2008, a magistrate
judge recommended that all of Parsley's claims be denied.
The district judge affirmed the Recommended Decision in
part, but it concluded that if Parsley had pled guilty and if the
court had granted Parsley an acceptance-of-responsibility
reduction, that combination might have affected the ultimate
sentence. On this view, the precise advice given to Parsley on
pleading guilty was material. The district court therefore
remanded to the magistrate judge for an evidentiary hearing
"regarding the advice [counsel] gave to Parsley prior to trial."
That evidentiary hearing before the magistrate judge
occurred on March 19, 2009. Parsley testified and the government
presented two witnesses, Parsley's trial counsel and the federal
prosecutor. In a March 27, 2009, Proposed Findings of Fact and
Recommended Decision, the magistrate judge concluded that Parsley
had been adequately informed of his options and that he had
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ultimately been the person who decided to go to trial. As a result
there was no ineffective assistance by trial counsel. The
magistrate judge recommended denial of Parsley's motion to vacate
and that no certificate of appealability should issue. The
district court adopted both recommendations.2
II.
On an appeal from the denial of a § 2255 motion following
an evidentiary hearing we review the district court's legal
determinations de novo and the court's findings of fact for clear
error. Peralta v. United States, 597 F.3d 74, 79 (1st Cir. 2010);
Awon v. United States, 308 F.3d 133, 140 (1st Cir. 2002).
Criminal defendants are "entitled to 'effective
assistance of competent counsel'" before deciding whether to plead
guilty. Padilla v. Kentucky, 130 S. Ct. 1473, 1480-81 (2010)
(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). "Under
Strickland, we first determine whether counsel's representation
'fell below an objective standard of reasonableness.'" Id. at 1482
(quoting Strickland, 466 U.S. at 688). We then inquire "whether
'there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different.'" Id. (quoting Strickland, 466 U.S. at 694). With
regard to plea agreements, counsel has a "critical obligation . . .
2
This court granted a certificate of appealability in July
2009.
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to advise the client of 'the advantages and disadvantages of a plea
agreement." Id. at 1484 (quoting Libretti v. United States, 516
U.S. 29, 50-51 (1995)). Our "review of counsel's performance must
be deferential, and reasonableness must be considered in light of
'prevailing professional norms.'" Peralta, 597 F.3d at 79 (quoting
Strickland, 466 U.S. at 688).
Parsley concedes the accuracy of the finding that trial
counsel at least briefly discussed with Parsley the option of
entering an open plea and contesting the drug quantities at
sentencing in order to argue for a downward adjustment based on
acceptance of responsibility. He argues that counsel nonetheless
provided ineffective assistance by counseling against the option,
that this counseling effectively foreclosed Parsley from
considering it, and that counsel failed to provide Parsley detailed
information about how a decision to go to trial would impact his
sentence. Parsley further argues that it was counsel's
responsibility, not merely to advise of the option, but to urge
Parsley to pursue a strategy of pleading without an agreement and
then contesting the drug amounts at sentencing. Parsley also
asserts, based on trial counsel's statement at the evidentiary
hearing, "I don't know that I would ever recommend for somebody to
[plead open and contest the drug quantity at sentencing]," that
counsel advised Parsley based on a "categorical approach" to the
option and that counsel failed to adequately consider the
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circumstances of Parsley's case. The magistrate judge and district
court rejected these claims, as do we.
Based on the facts found by the district court, which are
not clearly erroneous,3 we affirm the district court's finding that
the assistance provided by counsel did not fall below an objective
level of reasonableness. The district court supportably found that
Parsley had been urged by counsel to plead guilty but that he chose
not to do so because he believed he could get a better deal.
Parsley did not believe that in a federal case the prosecutor could
not guarantee him a lower sentence, although he had been told
otherwise. Counsel reasonably presented to and discussed with
Parsley his options. Counsel also participated in the reverse
proffer, during which the federal prosecutor explained to Parsley
his options and the weight of the evidence against him. The
options discussed included the possibility of Parsley pleading
guilty, contesting the drug quantity at trial, and pursuing a
reduction for acceptance of responsibility. Two lawyers thus
outlined this possibility for Parsley, along with its risks. That
trial counsel did not urge Parsley to follow such a strategy and,
3
Parsley states that he does not contest the district
court's finding of facts as clearly erroneous. To the extent
Parsley disputes the district court's finding that Parsley knew at
the time that he could have entered an open plea and contested the
drug quantity at sentencing, we conclude that the factual finding
was not clear error. There was ample evidence presented at the
evidentiary hearing that both trial counsel and the federal
prosecutor discussed this option with Parsley.
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indeed, recommended against it, did not represent ineffective
assistance.
The district court correctly followed the law in
concluding that counsel had made a reasonable strategic choice in
counseling his client. See Strickland, 466 U.S. at 689. Counsel's
recommendations to Parsley were based on his evaluation of the
discovery materials, the strength of the government's case, and his
approximately twenty years of experience as a criminal defense
attorney. The district court supportably found that counsel
reasonably believed that the government was more than capable of
proving the drug quantity it had alleged and counsel advised
Parsley accordingly. Counsel reasonably advised Parsley that he
could risk losing the acceptance of responsibility reduction if
Parsley forced the government to prove the actual drug quantity.
As the magistrate judge found,
[n]o experienced criminal defense attorney would want
his client to plead guilty and then mount a full blown
evidentiary challenge to the drug quantities without
being aware of the limited probability of success, given
the burden of proof at a sentencing hearing. The risk
of losing acceptance of responsibility credit existed
and counsel had the obligation to inform Parsley of that
fact.
Counsel acted reasonably.
Parsley argues a red herring: that counsel had adopted a
per se approach that he would never advise a client to enter an
open plea and challenge drug quantity at sentencing. That per se
approach, he says, is inherently unreasonable and so establishes
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ineffective assistance. The record does not support his argument.
Counsel's statement was, "I don't know that I would ever recommend
for somebody to [enter an open guilty plea and then contest drug
quantity at sentencing]." He did not say that he had a categorical
rule against entering such pleas. Counsel made clear that he
always discussed an open plea as an option with his clients, and in
this case counsel advised Parsley based on the particular evidence
at the government's disposal. Counsel's advice in this case, which
the district court found to be reasonable, was not based on a per
se view that defendants will always lose their sentencing reduction
for acceptance of responsibility if they plead and then challenge
the drug quantity at sentencing.
That Parsley may wish in hindsight that he had given
greater consideration to the option he rejected does not mean that
he was not properly advised on it.
The district court's judgment is affirmed.
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