United States v. Xavier Orange ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2021 Decided December 28, 2021
No. 20-3013
UNITED STATES OF AMERICA,
APPELLEE
v.
XAVIER JAMAAL ORANGE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cr-00119-1)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender. Tony Axam, Jr., Assistant Federal
Public Defender, entered an appearance.
Bryan H. Han, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Chrisellen R. Kolb and
Suzanne Grealy Curt, Assistant U.S. Attorneys.
Before: KATSAS and RAO, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.
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RAO, Circuit Judge: Xavier Orange pleaded guilty to two
violations of 18 U.S.C. § 922(g)(1), which prohibits certain
felons from possessing firearms, and was sentenced to 57
months of imprisonment. Orange argues on appeal that his
attorney was ineffective at his sentencing hearing, depriving
him of his Sixth Amendment right to counsel under Strickland
v. Washington, 466 U.S. 668 (1984). The record from the
hearing, however, makes clear that irrespective of any alleged
deficiencies in representation, the district court would have
imposed the same sentence. Because Orange has not
demonstrated prejudice, his ineffective assistance of counsel
claim fails.
I.
Early one morning, Orange was riding in the back seat of
a car in Northeast Washington, D.C. The car was stopped by
the United States Park Police, who noticed Orange had an open
bottle of liquor in his lap. After arresting Orange, the Park
Police discovered a loaded Sig Sauer pistol in his pocket.
Because Orange had previously been convicted in the District
of Columbia of attempted assault with a dangerous weapon and
of attempted robbery, it was unlawful for him to possess a
firearm. 18 U.S.C. § 922(g)(1); see D.C. CODE §§ 22-1803, 23-
1331(4) (2001). A grand jury charged him with violating
Section 922(g)(1).
One week after his arrest, Park Police officers went to an
apartment they believed was Orange’s. They found a loaded
.45 caliber Glock pistol in the kitchen. In the bedroom, they
discovered a .45 caliber extended magazine, alongside four
other handgun magazines, over a hundred rounds of
ammunition, and drug paraphernalia. Next to the magazines
and ammunition, they also found court documents in Orange’s
name and mail addressed to him. There was no indication that
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anyone else lived in the apartment. After forensic testing
identified Orange’s DNA on the Glock, he was charged with a
second violation of Section 922(g)(1).
Orange pleaded guilty, admitting possession of both the
Sig Sauer and Glock pistols. At the time of his guilty plea, the
government calculated that the appropriate sentence under the
Sentencing Guidelines was 21 to 27 months of imprisonment.
In exchange for Orange’s guilty plea, the prosecution agreed to
request the shortest sentence within that range and to request
that he be permitted to serve his sentences concurrently.
Orange acknowledged, however, that the plea agreement was
“not binding on the Probation Office or the Court” and that the
probation officer was free to request, and the court was free to
assess, a harsher sentence. Orange waived the right to appeal
his sentence but retained the right to bring ineffective
assistance of counsel claims.
Unfortunately for Orange, his probation officer proposed
a higher Guidelines range than the government had calculated.
First, according to the presentence report (“PSR”), the Sig
Sauer discovered in Orange’s pocket at the traffic stop had an
obliterated serial number, resulting in a four level
enhancement. Second, the PSR noted that Orange’s .45 caliber
Glock was “capable of accepting [the] large capacity
magazine” discovered in the bedroom, which increased his
base offense level. These adjustments resulted in a
recommended sentence of 57 to 71 months. Orange objected,
insisting he had never admitted that the Sig Sauer’s serial
number was obliterated or that he possessed a large capacity
magazine that his Glock could accept. The government agreed
with Orange that the proper Guidelines recommendation
remained 21 to 27 months.
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At a pre-sentencing conference, the district court sua
sponte flagged another issue. Relying on United States v.
Brown, 892 F.3d 385 (D.C. Cir. 2018) (per curiam), the court
asked the parties to determine whether Orange’s prior
conviction for attempted assault with a dangerous weapon was
a “crime of violence” under the Guidelines.
At Orange’s sentencing, the court quickly disposed of two
of the three outstanding issues. First, after reviewing the
evidence, his attorney and the prosecution agreed the serial
number on his Sig Sauer was not obliterated. Second, Orange’s
attorney conceded that attempted assault with a dangerous
weapon was a crime of violence under the Guidelines.
The parties disputed the PSR’s extended magazine
recommendation. Orange insisted that the apartment the
officers searched was not his; the .45 caliber extended
magazine discovered in the bedroom was not his; and, even if
it were, it had not been in “close proximity” to the .45 caliber
Glock found in the kitchen, as required by the Guidelines.
Based on the testimony of the officer who searched the
apartment, the district court determined that “[b]y far, the most
plausible conclusion” was that Orange owned the extended .45
caliber magazine. After all, it was located in a small apartment,
next to his mail and court documents, and one room away from
a .45 caliber handgun with his DNA on it. The court further
found that Orange’s extended magazine was in “close
proximity” to his Glock and increased his offense level
accordingly.
These findings placed Orange’s recommended sentence at
46 to 57 months of imprisonment. After considering the
sentencing factors of 18 U.S.C. § 3553(a)—including the
seriousness of Orange’s offense, his prior gun-related
convictions, and the need to protect the public—the court
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handed down two 57 month sentences, to be served
concurrently, followed by three years of supervised release.
The court stipulated that “if I’m wrong about the guideline
range, I would still vary upwards to give you this sentence.”
Orange timely appealed, claiming his attorney was ineffective
at sentencing.
II.
Orange argues his attorney made two errors at sentencing.
First, he contends his attorney should have realized that, as a
matter of law, a conviction in the District of Columbia for
attempted assault with a dangerous weapon is not a “crime of
violence” under the Guidelines. Second, he maintains that the
testifying officer never suggested the .45 caliber Glock was
“capable of accepting” the extended .45 caliber magazine, and
that no other evidence adduced at sentencing suggested the
magazine fit the gun. An effective attorney, Orange argues,
would not have conceded that attempted assault with a
dangerous weapon was a crime of violence and would have
recognized that the extended magazine finding lacked
evidentiary support.
To succeed on his ineffective assistance claim, Orange
must demonstrate (1) that his attorney’s conduct at sentencing
“fell below an objective standard of reasonableness,” and (2)
“a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 688, 694. Although we often remand
“colorable” ineffective assistance claims raised on direct
appeal “for further factual development,” a remand is
unnecessary if “the record clearly shows that the defendant was
not prejudiced.” United States v. Sitzmann, 893 F.3d 811, 831–
32 (D.C. Cir. 2018) (per curiam) (cleaned up); see also United
States v. Marshall, 946 F.3d 591, 596 (D.C. Cir. 2020). In this
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case, we need not consider the merits of Orange’s deficient
performance allegations, because the record clearly shows that
he did not suffer prejudice, i.e., a “reasonable probability …
that [his] prison term would not have been as long” if his
attorney had represented him effectively. United States v.
Murray, 897 F.3d 298, 312 (D.C. Cir. 2018) (cleaned up); see
also United States v. Eli, 379 F.3d 1016, 1019 (D.C. Cir. 2004).
Orange contends he was prejudiced because, if his
attorney had been competent, the court would have arrived at a
Guidelines range of 21 to 27 months; instead, it found that the
proper range was 46 to 57 months. The difference between the
two, he argues, suggests a reasonable probability of a more
lenient sentence.
The Supreme Court has explained that in “most cases”
when a defendant shows that, but for his attorney’s deficient
performance, the court would have selected a lower Guidelines
range, he will have “demonstrated [the] reasonable probability
of a different outcome” that Strickland requires. Molina-
Martinez v. United States, 578 U.S. 189, 200 (2016). Although
the Guidelines are not binding, they serve as the “initial
benchmark” and “framework for sentencing.” Id. at 198.
Absent some other indication from the record, a reviewing
court may therefore fairly assume that an errant Guidelines
calculation worked to the defendant’s prejudice. Yet because
sentencing calculations must turn on individualized
considerations, in some cases the district court may explicitly
rely on reasons not directly connected to the Guidelines range.
Where the “record in a case show[s] … that the district court
thought the sentence it chose was appropriate irrespective of
the Guidelines range,” and where it gave a “detailed
explanation of the reasons the selected sentence is
appropriate,” such explanations may undercut any inference of
prejudice from an incorrect Guidelines calculation. Id. at 200.
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At Orange’s sentencing, the court calculated a Guidelines
range of 46 to 57 months and imposed a sentence at the top of
that range. The court stated it would have reached the same
result irrespective of the Guidelines:
I’m going to sentence you to within what I
believe is a properly calculated guideline range;
however, I want to make clear that if I’m wrong
about the guideline range, I would still vary
upwards to give you this sentence in light of all
of the foregoing factors, but particularly given
that this is now your third weapons related
conviction and that you possess[ed] such an
array of weapons and ammunition in this case.
I believe your past conduct, in combination
[with] the instant offense, necessitates [a]
significant sentence to protect the community
from your future crimes. Anything less than
[the] sentence I’m imposing would not be
sufficient to comply with the purposes of
sentencing.
The district court also provided “a detailed explanation of
the reasons the selected sentence [was] appropriate.” Molina-
Martinez, 578 U.S. at 200. It explained that Orange was a “a
very dangerous person”—“a gunslinger” who was “heavily
armed,” with an “arsenal” of weapons in his home. This was
Orange’s third gun-related offense. He had previously pointed
a loaded handgun at an unsuspecting Lyft driver, threatening to
shoot him, and attempted to rob a pedestrian with a BB gun
disguised to resemble a pistol. His lenient punishments for
those earlier offenses had not deterred his “apparent habit of
threatening others with firearms.” That Orange twice violated
Section 922(g)(1) while on supervised release indicated a
“callousness to the rule of law.” The court’s reasons make
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“clear” that it “based the sentence” at least in part “on factors
independent of the Guidelines.” Id.
Orange protests that the district court’s analysis was not
wholly independent of the Guidelines, since it ultimately
selected a sentence within the calculated range. Molina-
Martinez, however, does not require the government to show
that the court’s decision was completely independent of the
Guidelines—only that the court explained why the sentence
was “appropriate irrespective of the Guidelines range.” Id.
When the court offers such an explanation, as it did in this case,
an incorrect Guidelines range will not suffice to demonstrate
prejudice. Aside from the court’s alleged Guidelines error,
Orange offers no reason to suppose that he would have
received a lesser sentence had his attorney raised the legal and
evidentiary objections described above.
Orange also attempts to rely on United States v. Parks, 995
F.3d 241 (D.C. Cir. 2021). In that case, he argues, we found
prejudice even though the district court implied it chose the
defendant’s sentence without relying on the Guidelines. Parks,
however, is easily distinguished because the record there was
“‘silent’ as to what the District Court would have done had it
‘considered the correct Guidelines range.’” Id. at 247 (quoting
Molina-Martinez, 578 U.S. at 201). In this case, the record is
not silent, and we can readily conclude that the court would
have imposed the same sentence irrespective of the Guidelines.
Finally, Orange argues the district court’s sentence would
not have survived direct appellate review, because the court
failed to justify the degree of variance between the 57 month
sentence imposed and the 21 to 27 month recommended
sentence which, if his attorney had been competent, the court
would have had to consider. Orange, however, waived the right
to appeal his sentence directly, so whether the court’s sentence
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would pass muster on direct review is not the relevant question.
In Parks, the absence of any reason for an upward departure
from the correct Guidelines range “further supported” a finding
of prejudice. Id. at 248. But we did not hold in Parks—and
never have held—that the ordinary standard of review for an
upward sentencing variance applies in ineffective assistance
cases. If a district court explains that its sentence does not
depend on the Guidelines and gives “reasons the selected
sentence is appropriate,” Molina-Martinez, 578 U.S. at 200, we
do not further inquire whether, on a hypothetical direct appeal,
those reasons would have supported an upward variance.
Under Strickland, the relevant question is whether Orange
has shown a reasonable probability that he would have received
a shorter sentence had his attorney been effective. We fail to
see such a reasonable probability in this case.
***
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.