United States v. Jessie Acosta

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-14581
Non-Argument Calendar
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D.C. Docket No. 3:16-cr-00348-WKW-WC-13
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JESSIE ACOSTA,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(November 18, 2019)
Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges.
PER CURIAM:
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Jessie Acosta appeals his conviction after pleading guilty to conspiracy to
distribute and possess with intent to distribute methamphetamine and cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), 846. For the first time on appeal, Acosta argues
that his decision to plead guilty was tainted by his counsel’s ineffective assistance
and that, as a result, his conviction and sentence should be reserved. However, the
record is not sufficiently developed in this direct appeal to resolve this ineffective-
assistance claim, so we affirm Acosta’s conviction and sentence.
I.
A federal grand jury returned a two-count superseding indictment charging
Acosta and fourteen others with conspiring to distribute and possess with intent to
distribute methamphetamine and cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
846, and Acosta and two others with conspiring to launder money, in violation of 18
U.S.C. § 1956(a)(1)(B), (h). After his arrest, Acosta was released on bond.
In April 2018, Acosta, represented by appointed counsel, pled guilty to the
drug-conspiracy count under a written plea agreement with the government. In
exchange for Acosta’s guilty plea, the government agreed to recommend a guideline
reduction for acceptance of responsibility, to not bring additional charges arising out
of the criminal activity, to dismiss the money-laundering count after sentencing, and
to recommend a sentence at the bottom of the guideline range. The parties also
agreed that Acosta was accountable for 18.18 kilograms of cocaine, 84.9 kilograms
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of methamphetamine, and 41.13 kilograms of marijuana, which resulted in a base
offense level of 38 under the sentencing guidelines.
After Acosta pled guilty, a magistrate judge conducted a bond hearing under
seal. During the hearing, the magistrate judge chastised Acosta’s counsel for his
conduct in relation to ensuring that Acosta complied with his bond conditions.
Before sentencing, the probation office prepared Acosta’s presentence
investigation report (“PSR”). The PSR recommended a base offense level of 38,
U.S.S.C. § 2D1.1, a four-level increase for Acosta’s role as an organizer or leader in
the criminal activity, id. § 3B1.1(a), and a three-level reduction for acceptance of
responsibility, id. § 3E1.1, for a total offense level of 39. Along with a criminal
history category of II, this established a recommended guideline imprisonment range
of 292 to 365 months. Acosta’s counsel filed objections to the PSR challenging the
organizer or leader enhancement, arguing that Acosta was not a leader in the drug
organization and did not exercise any decision-making authority.
In mid-July 2018, the district court issued orders continuing the sentencing
hearing and, on its own motion and without explanation, discharging Acosta’s
counsel. The court directed the Federal Defender’s Office to secure new counsel.
Represented by new counsel, Acosta went forward with sentencing in October
2018. The district court overruled Acosta’s objection to the four-level leadership
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enhancement and then sentenced him to 150 months of imprisonment. Acosta now
appeals.
On appeal, Acosta raises the sole issue of whether his appointed counsel, prior
to being discharged by the district court, rendered ineffective assistance in
connection with Acosta’s decision to plead guilty.
II.
Ordinarily, we review an ineffective-assistance-of-counsel claim de novo as a
mixed question of law and fact. United States v. Bender, 290 F.3d 1279, 1284 (11th
Cir. 2002). But we generally do not consider ineffective-assistance claims on direct
appeal. Id. In most direct appeals, the record will be “incomplete or inadequate”
for litigating a claim of ineffective assistance. Massaro v. United States, 538 U.S.
500, 504–05 (2003). For that reason, ineffective-assistance claims are better handled
in the context of a collateral attack on the conviction under 28 U.S.C. § 2255, where
the district court can develop the facts necessary to evaluate the claim. United States
v. Merrill, 513 F.3d 1293, 1308 (11th Cir. 2008). Yet there will be “rare” cases
where the record is developed enough to consider such a claim on direct appeal. Id.
Acosta maintains that this is “the rare case where the ineffective assistance of
counsel is clearly evident from the record on direct appeal.” He points out that
counsel was discharged by the district court on its own motion and argues that the
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transcripts of the bond and sentencing hearings demonstrate that counsel did not
provide competent representation.
To establish ineffective assistance of counsel, a defendant must show both
that (1) his counsel’s performance was deficient and (2) the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Where
the defendant challenges a guilty plea based on ineffective assistance, “the defendant
must show that there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 472 U.S. 52, 59 (1985).
Here, we conclude that the record below is not sufficiently developed to
evaluate Acosta’s claim of ineffective assistance at this time. To be sure, the record
indicates that counsel was discharged by the district court due to concerns about his
representation of Acosta, specifically with regard to Acosta’s bond conditions. But
the record contains little to no information about the factual background concerning
Acosta’s decision to plead guilty. Specifically, we lack any information about the
conversations Acosta had with counsel during the plea negotiation process, or about
counsel’s communication with prosecutors regarding the plea agreement. Without
additional factual development, we cannot tell whether Acosta was prejudiced by
counsel’s ineffectiveness, if any, during the plea-bargaining process.
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As a result, we think that Acosta’s claim of ineffective assistance, like most
claims of ineffective assistance, is better handled in the context of a § 2255
proceeding. See Massaro, 538 U.S. at 504 (“[I]n most cases a motion brought under
§ 2255 is preferable to direct appeal for deciding claims of ineffective assistance.”).
We therefore affirm Acosta’s conviction and sentence without prejudice to Acosta
raising this claim in a collateral attack on his conviction under § 2255.
AFFIRMED.
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