Christopher Erwin v. United States ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-3849
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CHRISTOPHER ERWIN,
Appellant
v.
UNITED STATES OF AMERICA
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-17-cv-05156)
District Judge: Hon. Peter G. Sheridan
____________
Submitted Under Third Circuit LAR 34.1(a)
June 13, 2022
Before: HARDIMAN, SMITH, and FISHER, Circuit Judges.
(Filed: July 18, 2022)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
HARDIMAN, Circuit Judge.
Christopher Erwin appeals the District Court’s order denying his motion to set
aside his sentence under 28 U.S.C. § 2255. Erwin claims the District Court should have
held an evidentiary hearing on his ineffective assistance of counsel claim. Because Erwin
cannot show prejudice, we will affirm.
I1
Erwin and twenty-one others were charged with conspiring to possess and
distribute oxycodone. See 21 U.S.C. §§ 841(a), (b)(1)(C), 846. Erwin agreed to cooperate
with the Government’s investigations and pleaded guilty. Erwin waived his right to
appeal and the Government promised to request a downward departure at sentencing if
Erwin provided substantial assistance. While the Government did move for a downward
departure, the sentencing court departed downward from Erwin’s Guidelines range of
262–327 months rather than his statutory maximum sentence of 240 months. The District
Court sentenced him to 188 months’ imprisonment—well in excess of his lawyer’s
prediction of no more than 120 months. Erwin appealed, in violation of his plea
agreement, and we remanded for de novo resentencing. See United States v. Erwin, 765
F.3d 219, 223 (3d Cir. 2014). Back in the District Court, the Government requested an
1
The District Court had jurisdiction under 28 U.S.C. § 2255. We have appellate
jurisdiction under 28 U.S.C. §§ 1291, 2253.
2
increased sentence because of Erwin’s violation of the plea agreement. The District Court
then sentenced Erwin to 200 months’ imprisonment.
Erwin moved to set aside his sentence under 28 U.S.C. § 2255, arguing that his
attorney rendered ineffective assistance by assuring him of no more than 120 months’
imprisonment. The District Court denied the motion. We granted a certificate of
appealability to determine whether an evidentiary hearing was necessary.
II
The District Court was required to hold a hearing “[u]nless the motion and the
files and records of the case conclusively show[ed] that [Erwin was] entitled to no relief.”
28 U.S.C. § 2255(b). But if a claim of ineffective assistance “clearly fails to demonstrate
either deficiency of counsel’s performance or prejudice to the defendant, then the claim
does not merit a hearing.” United States v. Arrington, 13 F.4th 331, 334 (3d Cir. 2021)
(quoting United States v. Dawson, 857 F.2d 923, 928 (3d Cir. 1988)).
The District Court did not err when it concluded that Erwin could not demonstrate
prejudice. Erwin’s allegations did not show “a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty.” United States v. Bui, 795 F.3d 363,
367 (3d Cir. 2015) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
We accept as true Erwin’s allegations that his counsel misadvised him of the
starting point for the downward departure offered in exchange for his cooperation and
assured him that “the worst he could expect was 120 months of incarceration.” App. 279
n.5; see also App. 280. We also grant that Erwin’s motivation for his plea and
cooperation was “to return to some portion of his son’s youth” after he finished serving
3
his sentence. App. 286. According to Erwin, but for counsel’s mistaken advice on his
sentencing exposure, he would have proceeded to trial or entered an open plea. Even
assuming counsel’s deficient performance in all these respects, the District Court’s
fulsome plea colloquy obviated any potential prejudice.
The District Court clearly advised Erwin of his sentencing exposure. We agree
with the District Court that Judge Wolfson’s plea colloquy with Erwin was “extensive.”
App. 10. Specifically, Judge Wolfson cautioned Erwin that § 841(b)(1)(C) carries “a
statutory maximum penalty of 20 years[’] imprisonment.” App. 358. Erwin stated he
expected an offense level of 39, understood that the offense carried a maximum sentence
of 20 years, and affirmed that his sentence “may be different from any estimate [his]
attorney may have given [him].” App. 361, 363. Judge Wolfson also advised Erwin that
“at this point it may be impossible for [counsel] to make a completely accurate
assessment as to the Guidelines range which will actually apply in your case because he
does not yet have all the necessary information and has not seen the Presentence Report.”
App. 362. Erwin affirmed Judge Wolfson’s warning, and we take him at his word that he
understood. See id.
So regardless of what Erwin’s lawyer told him, he was on notice of his sentencing
exposure and the limits of his attorney’s sentencing predictions. Accepting Erwin’s
allegations of misadvice as true, his lawyer’s expectation of a downward departure from
the statutory maximum was a faulty sentencing prediction. As we have noted, “[A]n
erroneous sentencing prediction by counsel is not ineffective assistance of counsel where
. . . an adequate plea hearing was conducted.” United States v. Shedrick, 493 F.3d 292,
4
299 (3d Cir. 2007) (citations omitted); cf. Lee v. United States, 137 S. Ct. 1958, 1968 n.4
(2017) (holding that plea colloquy did not cure prejudice of counsel’s incorrect advice
where that incorrect advice was provided during the plea colloquy and undermined the
court’s question).
While defendants might expect a more lenient sentence than the statutory
maximum, “all that the law requires is that the defendant be informed of his/her exposure
in pleading guilty. The law does not require that a defendant be given a reasonably
accurate ‘best guess’ as to what his/her actual sentence will be.” United States v. Mustafa,
238 F.3d 485, 492 n.5 (3d Cir. 2001). In other words, surprise or disappointment do not
establish prejudice. Erwin’s cooperation agreement neither guaranteed a five-level
downward departure nor specified a starting point. And most significantly, it cautioned
that his sentence remained “solely to the discretion of the sentencing judge.” App. 331.
Judge Wolfson had no obligation to depart downward, and her plea colloquy informed
Erwin of his sentencing exposure. Because Erwin cannot establish prejudice in view of
the textbook plea colloquy, no evidentiary hearing was required. We will therefore
affirm.
5
Erwin v. United States, No. 19-3849
Dissent
SMITH, Circuit Judge, dissenting.
Christopher Erwin claims that he would have taken any risk necessary for
the chance of obtaining a sentence that would see him released in time for the
remainder of his son’s childhood. He contends that in entering a plea bargain he
relied to his detriment on misadvice from counsel that a substantial assistance
departure would begin from the applicable statutory maximum, which was lower
than the calculated Guidelines range. When granted, however, the departure was
made from the higher Guidelines range. In bringing his ineffective assistance of
counsel claim, Erwin alleges that, had he known the departure would be applied
from the Guidelines range, he would have taken his chances at obtaining his
desired sentence by entering an open plea or by going to trial.
I readily concede that Erwin’s theory of harm would have required him to
surmount a steep climb. He would have needed to establish (1) that counsel
unreasonably advised him that the District Court would apply any downward
departure granted from his statutory maximum sentence, not his Guidelines range,
which exceeded the statutory maximum; (2) that the District Court’s plea colloquy
did not disabuse him of counsel’s misadvice; (3) that he was relying on counsel’s
misadvice regarding the downward departure point, not counsel’s sentencing
exposure estimate, in pleading guilty, with the hope of completing his sentence in
time to experience the remainder of his son’s childhood; and (4) that but for
1
Erwin v. United States, No. 19-3849
Dissent
counsel’s misadvice, he would have risked a substantial increase in sentencing
exposure by entering an open plea or proceeding to trial.
Here, however, the question presented is not whether Erwin is entitled to
relief but whether the District Court erred by not granting Erwin a hearing. If a
Section 2255 movant alleges facts capable of satisfying each part of his theory, “a
hearing must be held.” United States v. Arrington, 13 F.4th 331, 334 (3d Cir.
2021) (applying 28 U.S.C. § 2255(b)’s command that “the court shall . . . grant a
prompt hearing” unless the movant’s claim is “conclusively” undermined by the
record).
In my view, Erwin has met his limited burden at this stage.1 Because the
District Court erred in denying his claim without first holding a hearing, I would
vacate the District Court’s order and remand.
* * *
The majority would affirm the denial of Erwin’s claim without a hearing
because it views the District Court’s plea colloquy as sufficient to disabuse him of
his counsel’s misadvice regarding the downward departure point. Yet the plea
colloquy was silent as to the point from which a downward departure would be
calculated, and in fact at sentencing over a year later, the government stated that
1
We read pro se petitions such as Erwin’s “generously.” United States v. Santarelli,
929 F.3d 95, 103 (3d Cir. 2019) (citation omitted).
2
Erwin v. United States, No. 19-3849
Dissent
“because of the [statutory] cap . . . there may be some question as to where to start”
its requested downward departure. A102. Thus, the plea colloquy could not have
rendered harmless counsel’s erroneous advice to Erwin—and Erwin has prima
facie satisfied Part 2 of the four aspects of his theory of harm—unless Erwin’s
reliance on counsel was not with respect to his advice regarding the starting point
of the downward departure but instead based solely on his estimate of a 120-month
sentence. See United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007) (“we
have long held that an erroneous sentencing prediction by counsel is not ineffective
assistance of counsel where, as here, an adequate plea hearing was conducted”
(collecting cases)). Only then would counsel’s error have been cured by the part of
the colloquy that apprised Erwin of the District Court’s sentencing discretion and
the 240-month maximum.
Erwin, however, plausibly contends in his pro se motion that he entered the
plea agreement based on his understanding that “the statutory maximum sentence
was effectively [his] Guidelines range, and a [Section] 5K1.1 downward departure
would begin from that starting point.” A282. That contention is supported by his
wife’s sworn declaration stating that counsel “always began his sentence analysis
with a Guidelines range of 240 months, and would count down from that point.”
A294. So for purposes of determining whether Erwin is entitled to a hearing,
Erwin has prima facie established Part 3 of the four aspects of his theory of harm,
3
Erwin v. United States, No. 19-3849
Dissent
and we should assume then that Erwin pleaded in reliance on counsel’s advice
regarding the downward departure point, not counsel’s sentencing prediction.
As to Part 1 of his theory of harm, Erwin plausibly alleges both that counsel
represented to him that a downward departure would start from the mandatory
maximum—he and his wife both attested to that advice2—and that counsel did so
even though he had “no case law” to support his advice. A292. Counsel’s neglect
was compounded by his failure to ensure pursuant to USSG § 5G1.1(a) that a
downward departure would be applied starting from the mandatory maximum, see
United States v. Erwin, 765 F.3d 219, 225–28 (3d Cir. 2014) (holding that Erwin’s
appellate waiver barred his direct appeal of the downward departure point), as is
now required under a decision that we issued after Erwin’s sentencing, see United
States v. Rivera Cruz, 904 F.3d 324, 327 (3d Cir. 2018) (“a [Guidelines] range . . .
that falls entirely above a statutory maximum will typically ‘drop[] out of the
case’” (quoting Koons v. United States, 138 S. Ct. 1783, 1788 (2018) and citing
USSG § 5G1.1(a)) (emphasis in original)).
And on Part 4, Erwin plausibly asserts that, but for his counsel’s misadvice,
he would have gone to trial or entered an open plea in lieu of accepting the plea
2
Erwin’s counsel, in an affidavit submitted along with the government’s answer to
Erwin’s Section 2255 motion, does not deny that he advised Erwin that any
downward departure would be applied from his statutory maximum sentence.
4
Erwin v. United States, No. 19-3849
Dissent
bargain. Even if going to trial or pleading openly would have almost certainly
increased his sentencing exposure—amounting to “throwing a ‘Hail Mary’”—a
criminal defendant can still be prejudiced by his counsel’s misadvice during plea
bargaining if the defendant proves that he would have taken those odds but for his
counsel’s error. Lee v. United States, 137 S. Ct. 1958, 1967 (2017).
Erwin claims he would have taken any risk necessary for the chance of
obtaining a sentence that would see him released in time to experience the
remainder of his son’s childhood. So he has adequately alleged that, had he known
that the downward departure would start from the mandatory maximum—that the
Guidelines range he was hoping for would have required an eight-level
departure3—he would have pursued the “smallest chance of success” at trial or by
pleading openly. Id. at 1966. After all, “calculation of the Guidelines range can
rarely be shown not to affect the sentence imposed,” United States v. Langford,
516 F.3d 205, 213 (3d Cir. 2008), and the starting point of a downward departure is
a key component of a Guidelines range calculation. Thus, Erwin has stated a
prima facie claim that counsel’s error deprived him of his right to be “reasonably
3
A 120-month sentence, which would have seen Erwin released in time to
experience the remainder of his son’s childhood, falls within the 108-to-135 month
range associated with Offense Level 31 for Erwin’s Criminal History Category of I
under the 2012 edition of the Sentencing Guidelines that applied to Erwin.
U.S. SENT’G GUIDELINES MANUAL, Ch. 5 Pt. A (U.S. SENT’G COMM’N 2012).
Erwin’s Offense Level was 39.
5
Erwin v. United States, No. 19-3849
Dissent
informed” of his chances of obtaining his desired result in entering the plea
agreement. United States v. Bui, 795 F.3d 363, 367 (3d Cir. 2015).
* * *
I grant that Erwin would have had his work cut out for him in order to
succeed on the merits of each of the four components of his theory of harm.
Failure with respect to any one part would have meant denial of his claim for
relief. His long odds of succeeding, however, should have been an indication that
a hearing would have quickly uncovered any flaws in Erwin’s theory.
Because I would have remanded Erwin’s claim for a hearing on the merits,
I respectfully dissent.
6