United States v. Claudio Dibe , 776 F.3d 665 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50515
Plaintiff-Appellee,
D.C. No.
v. 2:09-cr-01099-DSF-1
CLAUDIO UCHE DIBE,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
December 9, 2014—Pasadena, California
Filed January 13, 2015
Before: Ronald Lee Gilman,* Susan P. Graber, and
Consuelo M. Callahan, Circuit Judges.
*
The Honorable Ronald Lee Gilman, Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
2 UNITED STATES V. DIBE
SUMMARY**
Criminal Law
The panel affirmed a sentence in a case in which the
defendant appealed on the ground that his below-Guidelines
sentence would have been even lower if the district court had
considered his ineffective-assistance-of-counsel claim as a
mitigating factor under 18 U.S.C. § 3553(a).
The panel held that ineffective assistance of counsel is not
within the enumerated § 3553(a) sentencing factors because
it does not fall under the “nature and circumstances of the
offense,” and does not reflect either the “history and
characteristics of the defendant” or the need for the sentence
“to promote respect for the law.”
The panel therefore concluded that the district court’s
failure to consider ineffective assistance of counsel as a
sentencing factor was not procedural error, and that the
below-Guidelines sentence is substantively reasonable.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. DIBE 3
COUNSEL
Edward M. Robinson (argued), Law Office of Edward M.
Robinson, Torrance, California, for Defendant-Appellant.
Andre Birotte, Jr., United States Attorney, and Robert E.
Dugdale and Jeff Mitchell (argued), Assistant United States
Attorneys, Los Angeles, California, for Plaintiff-Appellee.
OPINION
GILMAN, Circuit Judge:
In 2012, Claudio Uche Dibe pleaded guilty to 15 counts
of wire fraud without reaching a plea agreement with the
government. The district court sentenced him to 120 months
in prison, which was below the appropriate U.S. Sentencing
Guidelines range. Dibe now appeals on the ground that his
sentence would have been even lower if the district court had
considered Dibe’s ineffective-assistance-of-counsel claim as
a mitigating factor under 18 U.S.C. § 3553(a). For the
reasons set forth below, we AFFIRM the judgment of the
district court.
I. BACKGROUND
A. Underlying offense
For years, Dibe was part of a scheme to defraud victims
through false and fraudulent pretenses. Coparticipants in
Nigeria contacted individuals in the United States by email
and telephone, falsely telling them that they had won a lottery
or were named in an inheritance. Dibe represented himself as
4 UNITED STATES V. DIBE
diplomat “John Brown” and told the victims that they needed
to send money for fees and costs before they could receive
the promised lottery prize or inheritance.
The victims’ money, however, was kept by Dibe and his
coparticipants for their own benefit. Records reflect that
more than one million dollars was collected in wire transfers
from the victims. Dibe’s conduct resulted in his being
charged in 2009 with 15 counts of wire fraud, in violation of
18 U.S.C. § 1343.
B. Plea negotiations and guilty plea
The government and Dibe engaged in plea negotiations
beginning in 2011, with the government making him multiple
plea offers that were never accepted. On May 18, 2012, the
government extended what was ultimately its last proposed
plea agreement. Dibe contends that the proposed plea
stipulated a total offense level of 27 and a criminal-history
category of I, which would have resulted in a Sentencing
Guidelines range of 70 to 87 months of imprisonment. The
plea agreement in the record, however, appears to lay out a
total offense level of 30, which, when combined with a
criminal-history category of I, results in a Guidelines range of
97 to 121 months. Although the exact Guidelines range
under the last proposed plea agreement is unclear from the
record, both parties agree that it was lower than the 151- to
188-month range that the district court ultimately adopted.
The two sides never reached a deal because Dibe failed to
accept the May 18, 2012 proposed plea agreement before the
government’s offer expired. Due to a fast-approaching trial
date, the government’s offer expired one week after it was
communicated, and Dibe did not sign the proposed plea
UNITED STATES V. DIBE 5
agreement until May 29, 2012. Dibe’s prior counsel, Richard
Barnwell, presented the proposed agreement to his client and
explained that it was Dibe’s choice whether to accept it.
According to Dibe’s present counsel, “[b]ecause the
tremendous benefits of the plea agreement were not
explained, [Dibe] delayed signing this most favorable plea
agreement.” The government declined Dibe’s late-tendered
acceptance.
Instead, Dibe pleaded guilty without any agreement in
July 2012. During the hearing before the district court, Dibe
acknowledged that he had reviewed the Guidelines with
Barnwell and that he also understood how the various
elements and factors would be used to determine his sentence.
Dibe also acknowledged his understanding that, regardless of
the ultimate Guidelines range, the court could sentence him
to up to 20 years in prison, the statutory maximum.
In response to the district court’s question about whether
an open guilty plea was in Dibe’s best interests, Barnwell
stated: “Now that the plea agreements that [have] been
offered have been . . . technically rejected by Mr. Dibe, it is
my opinion and Mr. Dibe[’s], as well as his family[’s], [that]
the best thing for him would be to do an open plea.” Finally,
through several different formulations of the same question,
the court confirmed that Dibe was satisfied with Barnwell’s
representation. Dibe then proceeded to plead guilty to the 15
counts as charged in the indictment.
C. Sentencing
The Presentence Report (PSR) calculated a total offense
level of 34 and a criminal-history category of I, resulting in
a Guidelines range of 151 to 188 months of imprisonment.
6 UNITED STATES V. DIBE
The government recommended that Dibe be sentenced to 151
months in prison, to be followed by three years of supervised
release, and that he pay restitution of $1,079,445.18 and a
mandatory special assessment of $1,500.
In December 2012, the district court relieved Barnwell as
Dibe’s counsel at the latter’s request, which Barnwell also
joined. The court subsequently appointed Edward Robinson
from the indigent-defense panel as Dibe’s replacement
counsel. Dibe’s sentencing hearing was then continued
several times at his and Robinson’s request. During this time,
Dibe and Robinson considered the initiation of an ineffective-
assistance-of-counsel claim regarding Barnwell, but no such
motion was ever filed.
In his sentencing memorandum filed in September 2013,
however, Dibe argued that Barnwell had been ineffective and
that, as a result, the court should “vary his sentence
downward to a reasonable sentence of less than 70 months.”
He asserted that this is the range that he would have faced had
Barnwell effectively explained to him “how the Guidelines
apply to his case vis-a-vis the most favorable plea agreement
and an open plea, and had he been made aware of the manner
in which his cooperation under U.S.S.G. [§] 5K1.1 could
have provided leniency.” In its reply, the government
countered that ineffective assistance of counsel is not a proper
sentencing factor and that, in any event, Barnwell had not
been ineffective.
Dibe appeared before the district court for his sentencing
hearing in October 2013. At the hearing, Dibe’s counsel
urged the court to consider the alleged ineffective assistance
of prior counsel as a mitigating factor—specifically, as part
of “the nature and circumstances of the offense and the
UNITED STATES V. DIBE 7
history and characteristics of the defendant” and “the need for
the sentence imposed . . . to promote respect for the law.”
See 18 U.S.C. § 3553(a)(1), (a)(2)(A). The court instead
agreed with the government that ineffective assistance of
counsel should not be considered at sentencing:
The Court does not agree that this is a
factor to be considered under the 3553(a)
factors as written. It’s not the nature and
circumstances of the case; it’s the nature and
circumstances of the offense. And ineffective
assistance of counsel, even if it did occur, is
not, in my view, a part of the nature and
circumstances of the offense.
The court did, however, acknowledge the difficulty of
“put[ting] out of one’s mind the argument that counsel has
made, again, even without conceding or agreeing that prior
counsel was ineffective.”
Nevertheless, the district court emphasized that, even if
Dibe had timely accepted the government’s proposed plea
agreement, the court would not have been bound by its terms:
There is no requirement that the Court
determine its ultimate sentence by comparison
to a plea agreement the defendant did not
timely accept. Even if the defendant had
accepted it, there certainly was no guarantee
that the Court would go along with any
recommendation by the government, and the
Court generally believes that the guidelines
range for this type of crime is often too low.
8 UNITED STATES V. DIBE
The court further added that it “would most certainly have
calculated a higher range than the one suggested by the plea
agreement.”
In the end, the district court adopted the PSR’s Guidelines
calculation, which set the range at 151 to 188 months of
imprisonment. The court, in considering the § 3553(a)
sentencing factors, restated that it was “not inclined to vary
downward from the properly-calculated guidelines range
based on the claims of ineffective assistance alone.”
Although the district court did not find anything about
Dibe’s crime to be “particularly mitigating,” it ultimately
concluded that “a sentence somewhat lower than the
guidelines range is appropriate” because “the guidelines
range, especially for someone with Mr. Dibe’s history and
background and age, just does seem more than is reasonable
and sufficient and somewhat greater than necessary to comply
with the purposes stated in [§] 3553(a).” The court
accordingly sentenced Dibe to 120 months of imprisonment,
to be followed by three years of supervised release, and
ordered Dibe to pay $1,079,445.18 in restitution and a special
assessment of $1,500.
II. ANALYSIS
A. Standard of review
A district court’s sentencing decisions are reviewed under
the abuse-of-discretion standard. Gall v. United States,
552 U.S. 38, 51 (2007). On appeal, “only a procedurally
erroneous or substantively unreasonable sentence will be set
aside.” United States v. Carty, 520 F.3d 984, 993 (9th Cir.
2008) (citing Rita v. United States, 551 U.S. 338, 341
UNITED STATES V. DIBE 9
(2007)). We first consider whether the district court
committed a significant procedural error, and then we
consider whether the sentence is substantively reasonable. Id.
(citing Gall, 552 U.S. at 51).
Procedural errors include “failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence—
including an explanation for any deviation from the
Guidelines range.” Gall, 552 U.S. at 51; see also Carty,
520 F.3d at 993. When reviewing for substantive
reasonableness, we consider the totality of the circumstances.
Carty, 520 F.3d at 993.
B. The district court did not err when it declined to vary
downward based on Dibe’s ineffective-assistance-of-
counsel claim
Dibe seeks a limited remand “that affirms the district
court’s authority to exercise its discretion and consider
appellant’s ineffective assistance of counsel argument in
full.” He claims that the district court erred in (1) its belief
that it lacked the authority to consider ineffective-assistance-
of-counsel claims at sentencing, and (2) its failure to consider
such a claim as part of the complete history and
characteristics of the defendant under 18 U.S.C. § 3553(a)(1)
and the mandate to promote respect for the law under
§ 3553(a)(2)(A). We conclude, however, that neither claim
has merit.
10 UNITED STATES V. DIBE
1. Ineffective assistance of counsel is not a § 3553(a)
sentencing factor
Dibe cites United States v. Rivera-Sanchez, 222 F.3d
1057 (9th Cir. 2000), to support his proposition that “a district
court does have the authority to consider an ineffective
assistance of counsel claim at sentencing.” But the court in
Rivera-Sanchez actually declined to reach the merits of that
question because “the district court’s decision not to depart
downward was discretionary and not based on its belief that
it did not have the authority to do so.” Id. at 1064.
Specifically, “[t]he fact that the district court stated that it felt
there was no ‘basis’ for a downward departure and that a
departure was ‘not warranted’ does not indicate that the court
believed it lacked authority to depart downward for
ineffective assistance of counsel.” Id. at 1064–65 (citing
United States v. Robinson, 958 F.2d 268, 272 (9th Cir.
1992)).
This court has in fact answered in the negative when
directly confronted with the question whether ineffective
assistance of counsel is a proper sentencing factor. In United
States v. Crippen, 961 F.2d 882, 885 (9th Cir. 1992), this
court held that ineffective assistance of counsel “is simply not
a ‘mitigating or aggravating’ circumstance or otherwise a
sentencing factor pursuant to § 3553(a).” See also United
States v. Basalo, 258 F.3d 945, 950 (9th Cir. 2001) (agreeing
with the Second Circuit that “ineffective assistance of counsel
may not be used as a mitigating factor”).
The fact that Crippen and Basalo were decided before
United States v. Booker, 543 U.S. 220 (2005), does not
change our analysis. In making the Guidelines advisory
instead of mandatory, Booker did not affect the scope of the
UNITED STATES V. DIBE 11
§ 3553(a) sentencing factors. See id. at 259 (“Without the
‘mandatory’ provision, the Act nonetheless requires judges to
take account of the Guidelines together with other sentencing
goals.” (citing 18 U.S.C. § 3553(a))). Sentencing courts, in
other words, no doubt have greater discretion post-Booker,
but that discretion is still tied to the § 3553(a) statutory
sentencing factors. See Kimbrough v. United States, 552 U.S.
85, 101 (2007) (“Booker permits the court to tailor the
sentence in light of other statutory concerns as well.”)
(emphasis added) (internal quotation marks omitted); see also
Pepper v. United States, 562 U.S. 476, 131 S. Ct. 1229, 1241
(2011) (“[D]istrict courts may impose sentences within
statutory limits based on appropriate consideration of all of
the factors listed in § 3553(a) . . . .”).
The district court, in declining to vary downward based
on Dibe’s allegations of ineffective assistance of counsel,
correctly concluded that ineffective assistance is not within
the enumerated § 3553(a) factors. As the court explained,
ineffective assistance does not fall under the “nature and
circumstances of the offense,” see 18 U.S.C. § 3553(a)(1)—in
this case, wire fraud. Nor does it reflect the “history and
characteristics of the defendant,” see id., or the need for the
sentence “to promote respect for the law,” see id.
§ 3553(a)(2)(A).
Dibe points to the Supreme Court’s holding that a
defendant’s post-sentencing rehabilitation is part of a
defendant’s “history and characteristics,” Pepper, 131 S. Ct.
at 1242, to support his argument that ineffective assistance of
counsel is likewise part of the “history and characteristics” of
a defendant. The Court in Pepper reasoned that “evidence of
[a defendant]’s conduct since his release from custody . . .
provides the most up-to-date picture of [that defendant]’s
12 UNITED STATES V. DIBE
‘history and characteristics.’” Id. (citing United States v.
Bryson, 229 F.3d 425, 426 (2d Cir. 2000) (per curiam)).
Ineffective assistance of counsel at the plea-bargaining stage,
however, is distinguishable from a defendant’s post-
sentencing rehabilitation because Dibe’s ineffective-
assistance claim has nothing to do with his own conduct.
Similarly, Dibe’s argument that the district court’s failure
to vary downward based on ineffective assistance does not
“promote respect for the law” is incongruous with this court’s
previous interpretations of what promoting respect for the law
means. See United States v. Nielsen, 694 F.3d 1032, 1044
(9th Cir. 2012) (referencing, among other things, the
defendant’s failure to register as a sex offender and his
difficulties with supervision in discussing the need for the
480-month sentence to promote respect for the law); United
States v. Edwards, 595 F.3d 1004, 1010–11, 1015–16 (9th
Cir. 2010) (noting that the defendant’s pre-indictment
changes to his life showed respect for the law). Dibe’s
argument about promoting respect for the law is more
properly directed at preserving the integrity of judicial
proceedings, which—like ineffective assistance of counsel—
is not listed as a sentencing factor under § 3553(a).
This is not to suggest that sentencing courts are limited to
factors relating to a defendant’s personal history or to the
crime at issue. Such a position was in fact expressly rejected
by this court in United States v. Crippen, 961 F.2d 882, 885
(9th Cir. 1992) (holding that a sentencing court may depart
for other mitigating or aggravating circumstances unrelated
to a defendant’s personal history or to the crime in question).
But “for a factor to be considered, it must be tied to some
penological purpose or legitimate sentencing concern
expressed in the Sentencing Reform Act.” Id. (emphasis in
 UNITED STATES V. DIBE 13
original). Ineffective assistance of counsel is not so
expressed.
And contrary to Dibe’s argument, this court’s recent
decision in United States v. Steele, 733 F.3d 894 (9th Cir.
2013), does not call for a different result. The Steele court
adopted the reasoning of the Second Circuit’s decision in
United States v. Brown, 623 F.3d 104 (2d Cir. 2010), holding
that a district court may, at its discretion, consider an
ineffective-assistance-of-counsel claim prior to judgment.
Steele, 733 F.3d at 897.
But Steele and Brown are distinguishable from the instant
case in two critical ways. First, both cases considered a
district court’s discretion to decide ineffective-assistance-of-
counsel claims in the context of specific motions: Steele filed
a prejudgment motion for a new trial, Steele, 733 F.3d at 897,
and Brown filed a presentencing petition for habeas relief
pursuant to 28 U.S.C. § 2241 (which the court construed as a
motion for a new trial after holding that a § 2241 motion is
not the proper vehicle with which to advance a presentencing
ineffective-assistance claim), Brown, 623 F.3d at 113 n.5.
Dibe was unable to file a motion for a new trial because there
was never a trial in this case, but he could have filed—yet did
not—a motion to withdraw his guilty plea pursuant to Rule
11(d)(2)(B) of the Federal Rules of Criminal Procedure.
Second, just because district courts have the discretion to
consider motions claiming ineffective assistance of counsel
before judgment or sentencing does not mean that they must
consider such claims as a sentencing factor. We therefore
conclude that the district court’s failure to consider
ineffective assistance of counsel as a sentencing factor was
not a procedural error, significant or otherwise.
14 UNITED STATES V. DIBE
2. A downward variance at sentencing is not the proper
remedy for the ineffective assistance of counsel
Ineffective assistance of counsel, unlike the enumerated
§ 3553(a) factors, is “a constitutional violation of a
defendant’s rights,” and such a violation “requires a remedy
specifically tailored to the constitutional error.” United States
v. Basalo, 258 F.3d 945, 951 (9th Cir. 2001) (quoting United
States v. Carmichael, 216 F.3d 224, 227 (2d Cir. 2000))
(internal quotation marks omitted). As this court held in
Basalo, a downward departure or variance at sentencing is not
the appropriately tailored remedy for the ineffective
assistance of counsel:
“A finding that a convicted defendant has
received ineffective assistance of counsel
necessarily calls into question the validity of
the conviction. By contrast, the imposition of
a sentence (with or without a downward
departure) and the entry of judgment
necessarily assumes the validity of the
conviction. A downward departure on
ineffective assistance grounds is
impermissible because it simultaneously
assumes the validity of a defendant’s
conviction and conspicuously calls its validity
into doubt.”
Id. at 950 (quoting United States v. Bicaksiz, 194 F.3d 390,
398 (2d Cir. 1999)).
A more appropriate remedy for the ineffective assistance
of counsel would be to allow Dibe to withdraw his guilty
plea, or to require the government to re-extend its proposed
UNITED STATES V. DIBE 15
plea agreement. See Johnson v. Uribe, 700 F.3d 413, 426
(9th Cir. 2012) (holding that ineffective assistance rendered
during “the entire plea negotiation stage” would entitle the
defendant to a remedy returning him to the “pre-plea stage”),
amending and superseding 682 F.3d 1238 (9th Cir. 2012).
Dibe, however, seeks neither remedy on appeal, and asks us
instead to remand for resentencing. Because we conclude
that the district court did not err, we decline to do so. Dibe
can raise any ineffective-assistance-of-counsel claim, which
is “generally inappropriate on direct appeal,” in a post-
conviction proceeding under 28 U.S.C. § 2255. See United
States v. Ross, 206 F.3d 896, 900 (9th Cir. 2000).
C. Dibe’s below-Guidelines sentence is substantively
reasonable
Finally, Dibe challenges the substantive reasonableness
of his 120-month sentence. But his argument rests on the
same alleged procedural error discussed above—the district
court’s failure to consider his ineffective-assistance-of-
counsel claim at sentencing. Because we have concluded that
his argument is foreclosed by this court’s own precedent, we
see no reason to disturb the district court’s below-Guidelines
sentence in this case. We also “give due deference to the
district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance,” and will not reverse just
because we believe a different sentence is appropriate.
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008)
(quoting Gall v. United States, 552 U.S. 38, 51, 59–60 (2007)
(internal quotation marks omitted)).
16 UNITED STATES V. DIBE
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.