Steven Baker v. United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 23-2059
STEVEN L. BAKER,
Appellant
v.
UNITED STATES OF AMERICA
Appeal from the United States District Court
for the District of New Jersey
(District Court No. 3-14-cv-00370)
U.S. District Judge: Honorable Peter G. Sheridan
_____
Argued May 1, 2024
Before: KRAUSE, CHUNG, and AMBRO, Circuit Judges
(Opinion filed: July 25, 2024)
Alison Brill, Esq. (Argued)
Office of Federal Public Defender
800-840 Cooper Street
Suite 350
Camden, NJ 08102
Counsel for Appellant
Sabrina G. Comizzoli, Esq. (Argued)
Mark E. Coyne, Esq.
Steven G. Sanders, Esq.
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Counsel for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge
Following a robbery of the First Atlantic Federal Credit
Union in Neptune, New Jersey on January 13, 2010, federal
prosecutors charged Steven Baker with bank robbery and using
a firearm during the robbery, the latter in violation of 18 U.S.C.
§ 924(c). They offered Baker a plea agreement, under which
he would plead guilty to those two charges and also admit to,
but not be charged with, the commission of two other bank
robberies while using a firearm.
2
It was here the problems at the heart of this appeal
began. Baker’s counsel advised him that he faced a total of 15-
17 years’ imprisonment if he accepted the plea and that, if he
did not accept it, the Government would also charge him in
connection with the two other armed bank robberies. As to the
three potential Section 924(c) counts, his counsel told him that
he faced a consecutive term of 21 years’ imprisonment. In fact,
he faced a consecutive 57-year mandatory minimum sentence
under the statute’s “stacking” provision then in effect. After
receiving this highly inaccurate advice, Baker turned down the
plea, was charged in connection with the other robberies, and
proceeded to trial, where he was convicted on all counts. His
sentence was 57 years on the Section 924(c) counts plus 87
months on the bank robbery charges.
Baker filed a direct appeal, and we affirmed the
judgment and sentence. United States v. Baker, 496 F. App’x
201, 206 (3d Cir. 2012), cert. denied, 568 U.S. 1148 (2013).
He then filed a Section 2255 federal habeas motion, arguing
that his counsel was constitutionally ineffective for severely
miscalculating his sentence exposure as he weighed the plea
offer. 28 U.S.C. § 2255. The District Court denied relief,
determining Baker could not show prejudice.
Considering the significant disparity in Baker’s
comparative sentence exposure between accepting the plea
offer and going to trial and crediting his testimony that he
would have accepted the plea agreement but for his counsel’s
error, we conclude that Baker has demonstrated prejudice.
Thus, we reverse and remand.
3
I. Background
A. Plea Offer and Trial
The initial charges against Baker included two counts:
(1) bank robbery by force and violence, in violation of 18
U.S.C. §§ 2113(a) and 2; and (2) using or carrying a firearm in
furtherance of the robbery, in violation of 18 U.S.C. § 924(c).
Baker hired an attorney to represent him, who remained his
counsel through his direct appeal.
On February 17, 2010, the Government offered Baker a
plea agreement. If accepted, Baker would plead guilty to the
two counts above (although the initial bank robbery charge
would be upgraded to armed bank robbery, in violation of 18
U.S.C. § 2113(a), (d)) and also admit to committing two other
bank robberies: one on September 24, 2009, of the Investors
Savings Bank in Lakewood, New Jersey, and another on
November 9, 2009, of the PNC Bank in Brick, New Jersey. In
exchange, the Government would not bring additional charges
against Baker in connection with the two earlier robberies. The
agreement was set to expire on March 17, 2010, a month later.
Baker met with his counsel to discuss the plea offer on
March 21, 2010—four days after its original expiration date—
at the Monmouth County Correctional Institution.
Surprisingly, there is nothing in the record bearing on whether
the Government extended the initial deadline. Nonetheless,
both parties assume that the offer remained open for Baker to
accept when he met with his counsel.
Baker’s counsel told him that if he accepted the
agreement, his sentence exposure on the two counts would be
15-17 years (8-10 years for the bank robbery charge and a
4
mandatory consecutive 7 years for the Section 924(c) charge).
She also advised him that if he rejected the plea offer, he would
be charged in connection with the two earlier bank robberies,
i.e., with two additional counts of armed bank robbery under
18 U.S.C. § 2113(a), (d) and two more firearm counts under
Section 924(c), resulting in six counts total.
His counsel then advised him on his sentence exposure
on the six potential counts were he to reject the plea agreement
and go to trial. For the bank robbery charges, it is unclear
precisely what she told him. Baker testified that he understood
he could receive 10-30 years for the three counts. But his
counsel’s handwritten notes from the plea discussion suggest
she told him he faced 15-35 years on those counts. 1
For the three potential Section 924(c) counts, Baker’s
counsel told him he faced 21 years, 7 years for each count.
This is reflected in her notes from the meeting, where she wrote
“7-7-7” next to the 21-year figure added to his total sentence
exposure—numbers that are inexplicable if not referring to the
1
As Baker observes, neither the 10-30 nor the 15-35 year
estimate for the bank robbery charges accords precisely with
the statute or U.S. Sentencing Guidelines at the time. The
armed bank robbery statute carries a maximum 25-year term.
18 U.S.C. § 2113(a), (d). Under the Guidelines, the three bank
robberies had a combined adjusted offense level of 27, which,
in combination with a criminal history category of III, resulted
in a Guidelines range of 87-108 months (7 ¼ to 9 years). See
U.S.S.G. ch. 5., pt. A (Sentencing Table).
5
potential Section 924(c) charges. App. 176. Baker understood
the 21-year total for those counts to be a maximum. 2
His counsel’s notes then summed up Baker’s sentence
exposure, calculating he faced a total term of imprisonment of
36-56 years if he were convicted of the six potential counts: 21
years for the Section 924(c) charges and 15-35 years on the
bank robbery charges. But in light of Baker’s testimony that
he was told he faced 10-30 years for the bank robbery counts,
the District Court gave him the benefit of the doubt and
assumed instead that he was told the sentencing range was 31-
51 years for all six counts. Baker also testified that he believed
his chances of receiving the maximum sentence within that
range—51 years—were “slim to none” based on conversations
with his counsel. App. 93.
Altogether, then, his counsel told him he faced 15-17
years if he accepted the plea offer and either 31-51 or 36-56
years if he rejected the plea agreement and was convicted of all
the potential counts at trial.
This calculation, however, substantially understated the
amount of time Baker faced on the three Section 924(c) counts.
He actually faced a 57-year mandatory minimum under the
version of the statute then in force. This resulted from the
“stacking” provision under Section 924(c), which provides a 7-
year mandatory minimum for brandishing a firearm while
2
Baker’s counsel also appears not to have told him that he
faced a potential maximum of life imprisonment on the Section
924(c) charge, although the Government mentioned this at his
arraignment. See United States v. Shabazz, 564 F.3d 280, 289
(3d Cir. 2009).
6
committing a crime of violence (here, the bank robberies), 18
U.S.C. § 924(c)(1)(A)(ii), and, at the time, provided a 25-year
mandatory minimum term of imprisonment “[i]n the case of a
second or subsequent conviction,” 18 U.S.C. § 924(c)(1)(C)
(prior to the 2018 amendment). The term “second or
subsequent conviction” was interpreted to include instances
where a defendant was convicted of multiple counts in the
same indictment, as occurred with Baker. See Deal v. United
States, 508 U.S. 129, 132–37 (1993). Under this prior
“stacking” provision, Baker thus faced one 7-year plus two 25-
year mandatory minimum terms of imprisonment.
Congress then amended the statute as part of the First
Step Act of 2018, Pub. L. No. 115–391, § 403(a), 132 Stat.
5194, 5221–22, which clarified that the “stacking” 25-year
mandatory minimum term for a subsequent conviction only
applies when a violation of that section—i.e., using or carrying
a firearm during the commission of a violent felony—“occurs
after a prior conviction . . . has become final.” 18 U.S.C.
§ 924(c)(1)(C) (as amended in 2018). 3
3
Under the current version of the statute, Baker, who was
convicted on three Section 924(c) counts simultaneously,
would not be subject to the stacking 25-year terms for the
second and third bank robberies but would instead face a 7-
year mandatory minimum for each, resulting in a 21-year
mandatory minimum for all three counts. See 18 U.S.C.
§ 924(c)(1)(C) (as amended in 2018). But Congress withheld
retroactive application of the amendment from defendants
whose convictions were already final, as Baker’s was. First
Step Act of 2018, § 403(b), 132 Stat. at 5222; see also United
States v. Hodge, 948 F.3d 160, 161–63 & n.2 (3d Cir. 2020).
7
Relying on his counsel’s miscalculation and without the
benefit of knowing his true sentence exposure, Baker rejected
the plea offer. The Government then filed a superseding
indictment, adding two counts of armed bank robbery and two
Section 924(c) counts. 4 Baker pleaded not guilty and
proceeded to trial, where the jury found him guilty of all
counts. He testified that he only learned that the three Section
924(c) counts carried a mandatory minimum of 57 years after
he read over his presentence investigation report.
The District Court sentenced Baker to the 57-year
mandatory minimum for the Section 924(c) counts to be served
consecutively to 87 months for the bank robbery counts, the
latter being at the lowest end of the U.S. Sentencing Guidelines
range of 87-108 months applicable to a total offense level of
27 and a criminal history category of III. U.S.S.G. ch. 5, pt. A.
It also imposed supervised release of 5-year terms for each
count, to be served concurrently, and restitution in the amount
of $145,111.00. Baker was 40 years old at the time of
sentencing. He represents in his briefing that, with his good
time credit, he is required to serve at least 55 years total,
meaning he will be in prison until he is roughly 95. Baker filed
a direct appeal, and we affirmed the judgment and sentence.
Baker, 496 F. App’x 201. 5
4
At the arraignment, Baker was not advised of the stacking
mandatory minimums under the Section 924(c) counts.
5
In light of the First Step Act’s amendment to the “stacking”
provision in Section 924(c), First Step Act of 2018, § 403(a),
132 Stat. at 5221–22, Baker has also moved for a modification
to his sentence under 18 U.S.C. § 3582(c) and U.S.S.G.
§ 1B1.13(b)(6) in his criminal proceedings. United States v.
8
B. Federal Habeas Proceedings
In January 2014, Baker filed pro se a motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
In this initial motion, he made numerous claims of ineffective
assistance of counsel but not the one directly at issue here
concerning his sentence exposure on the Section 924(c) counts.
One claim alleged that Baker’s counsel did not inform him of
a separate plea deal he believed the Government had offered,
which, in his understanding, would have required him to plead
guilty to one count of criminal possession of stolen property in
exchange for the dismissal of the bank robbery charges. Baker
claimed that his counsel rejected the offer without first relaying
it to him.
In June 2016, Baker moved to amend his Section 2255
motion and for appointment of counsel, both of which the
District Court granted. The amended (and counseled) Section
2255 motion added another ineffective-assistance-of-counsel
claim, alleging that Baker’s counsel did not advise him
correctly as to his criminal history category while he
considered the Government’s plea agreement. Specifically, he
alleged that his counsel told him he faced a criminal history
category of IV when in fact it was III. The District Court
denied the amended Section 2255 motion in part but
determined that an evidentiary hearing was required for
Baker’s ineffective-assistance claims related to the separate
plea offer (i.e., for criminal possession of stolen property) and
the calculation of his criminal history category.
Baker, No. 3:10-cr-00266-PGS-1 (D.N.J. Nov. 3, 2023) (ECF
No. 83). The District Court has yet to rule on that motion.
9
A new federal public defender then entered an
appearance for Baker and filed a letter with the Court notifying
it that an additional issue of ineffective assistance had come to
light, namely that his plea counsel had advised him incorrectly
on the “stacking” provision under 18 U.S.C. § 924(c)—the
claim at issue here. The Government opposed this new claim,
arguing that it was time-barred.
Following an evidentiary hearing on July 1, 2021,
during which the District Court heard Baker and his plea
counsel’s testimony as well as admitted into evidence his
counsel’s handwritten notes from their plea discussion, the
Court denied all of Baker’s remaining claims of ineffective
assistance of counsel. Regarding the separate plea offer, the
Court concluded that, besides Baker’s testimony, there was
nothing substantiating his claim that the Government had
offered a second plea agreement related to criminal possession
of stolen property. Additionally, his counsel and the Assistant
U.S. Attorney on the case declared that the Government had
never made such an offer. Rather, Baker’s counsel testified
that she had proposed a resolution involving a plea to charges
for “possession of stolen property” but that the proposal “was
rejected,” meaning the Government never offered a formal plea
based on “criminal possession of stolen property.” App. 106,
109.
For the ineffective-assistance claim predicated on the
alleged miscalculation of Baker’s criminal history category,
the Court concluded that, regardless of which category his
counsel had said applied, she had advised him correctly on his
sentence exposure if he took the Government’s offer to plead
guilty to one count of bank robbery and one Section 924(c)
firearm count by stating he faced 15-17 years’ imprisonment.
10
As the Court concluded, the advised 8-10 year range for the
bank robbery count reflected the 97-121 month range provided
by the U.S. Sentencing Guidelines for a criminal history
category of III (the correct category) in conjunction with a total
offense level of 28, as stipulated in the plea offer.
Regarding the claim before us—concerning the
sentence exposure for the three potential Section 924(c)
counts—the Court first determined it was timely. 6 Turning to
the merits, it found that Baker’s counsel “incorrectly advised
[him] about the stacking provisions of § 924(c) and did not tell
[him] he faced a mandatory minimum sentence of fifty-seven
years[’] imprisonment if he went to trial and was convicted on
all three . . . charges,” instead telling him he faced only 21
years on those charges. Baker v. United States, No. 14-370,
2023 WL 2889483, at *14 (D.N.J. Apr. 11, 2023).
It then turned to whether this miscalculation meant that
his counsel had provided constitutionally ineffective
assistance. See Strickland v. Washington, 466 U.S. 668 (1984).
The Court assumed, without deciding, that his counsel’s
performance fell below an objective standard of
reasonableness, but it went on to conclude that Baker had
nonetheless failed to demonstrate prejudice, i.e., “to show . . .
a reasonable probability that he would have accepted the
government’s plea offer of fifteen-seventeen years[’]
imprisonment had [his counsel] properly advised him about his
sentencing exposure on the three § 924(c) counts at trial.”
Baker, 2023 WL 2889483, at *14; see Strickland, 466 U.S. at
688, 694. As discussed at length below, the Court relied on
6
The Government does not renew its timeliness challenge on
appeal. Tr. of Oral Arg. at 23.
11
Baker’s assertions of innocence in the proceedings following
his rejection of the plea offer as well as its determination that
he was not credible in stating he would have accepted the plea
offer but for his counsel’s error.
Having concluded that Baker did not show prejudice,
the Court denied his ineffective-assistance claim predicated on
the miscalculation of his sentence exposure on the Section
924(c) counts, but it nonetheless issued a certificate of
appealability on that claim. Baker appeals.
II. Discussion
The District Court had jurisdiction under 28 U.S.C.
§ 2255. We have appellate jurisdiction under 18 U.S.C. § 3742and 28 U.S.C. §§ 1291, 2253(c)(1)(B). We review the Court’s
denial of Baker’s Section 2255 motion de novo with respect to
legal conclusions and for clear error as to its factual findings.
Lambert v. Blackwell, 134 F.3d 506, 512 (3d Cir. 1997).
The single issue before us is whether Baker’s plea
counsel was constitutionally ineffective when she provided
him with inaccurate advice regarding his sentence exposure for
the three potential Section 924(c) firearm charges as he
considered the plea offer.
“The Sixth Amendment . . . provides that the accused
shall have the assistance of counsel in all criminal
prosecutions. The right to counsel is the right to effective
assistance of counsel.” Missouri v. Frye, 566 U.S. 134, 138
(2012). This right extends to the plea-bargaining stage of a
criminal prosecution. Lafler v. Cooper, 566 U.S. 156, 162
(2012); see Frye, 566 U.S. at 144; Hill v. Lockhart, 474 U.S.
1252, 57 (1985). This is appropriate given the “simple reality”
that the plea process plays a substantial and often determinative
role in criminal proceedings. Frye, 566 U.S. at 143; see also
Lafler, 566 U.S. at 170 (“[C]riminal justice today is for the
most part a system of pleas, not a system of trials.”).
To demonstrate ineffective assistance, Baker must show
his counsel’s performance was deficient, i.e., that it fell below
an “objective standard of reasonableness,” and that he was
prejudiced by that deficiency. Strickland, 466 U.S. at 688–92.
To establish prejudice, a defendant must show that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,”
id. at 694, meaning here Baker must show “that but for [his]
counsel’s errors he would have accepted the plea.” Lafler, 566
U.S. at 171. 7 “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
“When addressing a guilty plea, counsel is required to
give a defendant enough information ‘to make a reasonably
informed decision whether to accept a plea offer.’” United
States v. Bui, 795 F.3d 363, 367 (3d Cir. 2015) (quoting Shotts
v. Wetzel, 724 F.3d 364, 376 (3d Cir. 2013)); see also United
States v. Day, 969 F.2d 39, 43 (3d Cir. 1992) (“[A] defendant
has the right to make a reasonably informed decision whether
to accept a plea offer.”).
7
The parties do not contest on appeal that the terms of the plea
offer would have been accepted by the District Court if Baker
had agreed to it. Tr. of Oral Arg. at 9, 23; see Lafler, 566 U.S.
at 164.
13
A. Strickland: Reasonableness of Counsel’s
Performance
There is no dispute that Baker’s counsel gave him
incorrect advice about his sentence exposure on the three
potential Section 924(c) counts. Whereas he faced a 57-year
mandatory minimum on those counts, his counsel told him he
only faced 21 years—7 years for each count. Moreover, Baker
understood the 21-year figure to reflect the counts’ maximum
total sentence. 8
We have little difficulty concluding that this more than
three-decade miscalculation of Baker’s sentence exposure on
the three potential Section 924(c) counts is objectively
unreasonable, as the Government conceded at oral argument.
Tr. of Oral Arg. at 22. “Knowledge of the comparative
sentence exposure between standing trial and accepting a plea
offer will often be crucial to the decision whether to plead
guilty.” Day, 969 F.2d at 43. The law governing the
“stacking” provision under Section 924(c), which imposed the
57-year mandatory minimum, was established and
longstanding at the time of the error. See Deal, 508 U.S. at
132–37. At base, Baker’s counsel violated her duty to inform
him adequately of his potential sentence exposure so he could
be “reasonably informed” as he considered the plea agreement.
Shotts, 724 F.3d at 376 (quoting Day, 969 F.2d at 43); see also
8
The District Court only found that Baker’s counsel told him
he faced 21 years on the three Section 924(c) counts, and it did
not address whether she told him this figure represented a
mandatory minimum. Baker testified, however, that he
understood the figure to represent the maximum possible
sentence he faced on those counts.
14
Hinton v. Alabama, 571 U.S. 263, 274 (2014) (“An attorney’s
ignorance of a point of law that is fundamental to his case
combined with his failure to perform basic research on that
point is a quintessential example of unreasonable performance
under Strickland.”). His counsel’s performance was thus
objectively unreasonable.
B. Strickland: Prejudice
We turn then to whether Baker suffered prejudice from
the error sufficient to satisfy Strickland’s second prong. To
repeat, this requires only that Baker demonstrate a “reasonable
probability” that, but for his counsel’s error, he would have
accepted the plea. Lafler, 566 U.S. at 171.
The District Court concluded he did not. Its decision
rested on two grounds: (1) its finding that Baker was not
credible in stating he would have accepted the plea agreement
but for his counsel’s error; and (2) his insistence on his own
innocence during his criminal proceedings, especially at
sentencing. As explained below, we find the Court’s decision
not to credit Baker’s testimony that he would have accepted the
plea clearly erroneous, and we do not think that Baker’s
insistence on innocence in the proceedings following his
rejection of the plea offer deserves much, if any, weight in our
prejudice analysis.
More importantly, the District Court’s focus on these
two issues obscured the most significant factor bearing on
prejudice in this case: the substantial disparity between Baker’s
sentence exposure under the plea and actual sentence as well
15
as his counsel’s glaring miscalculation as to his actual sentence
exposure. To this we turn first. 9
i. Disparity in Comparative Sentence Exposure
Disparities in a defendant’s comparative sentence
exposure between the actual sentence faced and a more
favorable sentence he could have received if his counsel had
been effective are an important factor in the reasonable-
probability inquiry where a defendant claims he would have
accepted a plea but for his counsel’s error. See, e.g., Mask v.
McGinnis, 233 F.3d 132, 141–42 (2d Cir. 2000); United States
v. Herrera, 412 F.3d 577, 581 (5th Cir. 2005); United States v.
Morris, 470 F.3d 596, 602–03 (6th Cir. 2006); United States v.
Kearn, 90 F.4th 1301, 1312 (10th Cir. 2024); United States v.
Knight, 981 F.3d 1095, 1103 (D.C. Cir. 2020); see also Day,
969 F.2d at 45–47 (stating a disparity between a miscalculated
sentence exposure and actual sentence could support a
reasonable probability the defendant would have taken a plea
but for counsel’s error and remanding for further record
development). In combination with a defendant’s statement
that he would have accepted a plea agreement but for his
counsel’s error, significant disparities in sentence exposure can
be sufficient to establish a reasonable probability the defendant
would have made an agreement. See, e.g., Mask, 233 F.3d at
141; Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003);
Griffin v. United States, 330 F.3d 733, 737–38 (6th Cir. 2003).
This treatment of sentence-exposure disparities makes
9
We note at the outset that there was no cure of his counsel’s
error before Baker rejected the plea. Cf. Bui, 795 F.3d at 367.
16
good sense. It offers an objective piece of evidence in an
inherently speculative inquiry that requires us to imagine a
counterfactual scenario in which a defendant possessed
information relevant to his plea calculus that he did not actually
have due to an error by counsel. See United States v. Gordon,
156 F.3d 376, 381 (2d Cir. 1998) (“[A great] disparity provides
sufficient objective evidence—when combined with a
[defendant’s] statement concerning his intentions—to support
a finding of prejudice under Strickland.”). 10 Moreover, while
a defendant’s calculus in accepting or rejecting a plea offer
may involve many variables, “[k]nowledge of the comparative
sentence exposure between standing trial and accepting a plea
offer will often be crucial.” Day, 969 F.2d at 43. Large
sentence-exposure disparities weigh directly on this “crucial”
10
Some courts have required objective evidence, i.e., evidence
besides a defendant’s statement that he would have made a
different decision regarding a plea but for his counsel’s error,
to demonstrate prejudice. See, e.g., Paters v. United States,
159 F.3d 1043, 1047 (7th Cir. 1998); Gordon, 156 F.3d at 381(stating the Seventh Circuit’s “objective evidence” rule is
consistent with Second Circuit precedent but finding such
evidence was provided by a sentence disparity). We have not
formally adopted the rule. See Day, 969 F.2d at 45(acknowledging the rule but determining it was not necessary
to adopt it because more factual development was required on
remand anyway); United States v. Jones, 336 F.3d 245, 254 (3d
Cir. 2003) (affirming the district court, which referred to the
rule, without expressly adopting it). We need not decide
whether to adopt the rule here because, in any case, Baker’s
gaping sentence-exposure disparity provides sufficient
objective evidence. See, e.g., Mask, 233 F.3d at 141; Griffin,
330 F.3d at 739.
17
decision. See Morris, 470 F.3d at 602 (giving “special weight
to significant disparities between penalties offered in a plea and
penalties of a potential sentence in determining whether a
defendant suffered prejudice by not accepting a plea offer”);
Smith v. United States, 348 F.3d 545, 552 (6th Cir. 2003)
(considering sentence disparities as “strong evidence of a
reasonable probability that a properly advised defendant would
have accepted a guilty plea offer”). 11
Here, Baker could have pleaded guilty to two charges
(one count for bank robbery and one for violating Section
924(c)), which, as his counsel advised, would have exposed
him to 15-17 years’ imprisonment. But because he rejected the
plea offer, he was charged with four more counts (two for
armed bank robbery and two additional Section 924(c)
counts). 12 He was then convicted of all six counts and
sentenced to the mandatory 57 years for the Section 924(c)
counts to run consecutively to 87 months for the bank robbery
counts.
Unfortunately, he did not understand the full scope of
11
At least one court has even applied a rebuttable “presumption
of prejudice” where there is a significant disparity between the
plea offered and the sentence received where a defendant’s
counsel failed to advise him accurately about the comparative
sentence exposure. See Johnson v. Genovese, 924 F.3d 929,
940 (6th Cir. 2019) (quoting Sawaf v. United States, 570 F.
App’x 544, 548 (6th Cir. 2014)). We do not adopt any per se
or presumption-of-prejudice rule here but instead treat the
disparity in Baker’s case as one factor to consider in our
reasonable-probability prejudice analysis.
12
Additionally, the initial bank robbery charge was upgraded
to armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d).
18
the disparity between his sentence exposure under the plea (15-
17 years total) and on all counts at trial (57 years minimum
plus a likely 87-108 months) because his counsel significantly
miscalculated his exposure on the Section 924(c) counts,
telling him he faced 21 years instead of the 57-year mandatory
minimum. If we view the evidence in his favor, Baker
understood he could receive at most 31-51 years if convicted
of all potential counts. A mandatory 57-year minimum
sentence, running consecutively to a likely 87-108 month
sentence, is much greater than the 51-year maximum Baker
believed there was a “slim to none” chance he could receive,
not to mention the 31 years he was told to expect as the lowest
end of his sentencing range. App. 93. Even if we were to
assume that his counsel told him he faced 36-56 years total
(rather than 31-51), that range is still significantly lower than a
consecutive and mandatory 57-year minimum plus a likely 87-
108 months. Baker’s actual sentencing range was also
extraordinarily greater than the 15-17 years he would have
received had he accepted the plea offer. Further, as Baker
states, the 57-year mandatory minimum alone would almost
certainly mean that he would “die in prison.” Reply Br. at 7.
This great sentence-exposure disparity, the true scope of
which Baker did not know due to his counsel’s underestimate
of the sentence for the potential firearm charges, weighs
heavily in favor of prejudice. See Morris, 470 F.3d at 603
(“Because [the defendant] . . . relied on the erroneous
information, he suffered prejudice and his ability to make an
intelligent decision regarding a plea offer [was] severely
undermined.” (internal quotation marks and citation omitted)).
Further contributing to prejudice is the fact that the plea would
have required him to plead guilty only to two counts (one bank
robbery and one Section 924(c) count), whereas, after rejecting
19
the plea, he was charged with and convicted of six counts in
connection with all three bank robberies. Moreover, his two
additional Section 924(c) counts carried significantly higher
penalties due to their “stacking” 25-year mandatory minimum
sentences. See Lafler, 566 U.S. at 166 (“[T]he defendant who
goes to trial instead of taking a more favorable plea may be
prejudiced from either a conviction on more serious counts or
the imposition of a more severe sentence.”). 13
ii. Baker’s Credibility
Testifying to the significance of this sentence-exposure
disparity, Baker stated that he would have “accepted the plea
agreement had [he] known that [he] was facing 57 years alone
just for [the Section 924(c)] charges.” App. 74. But the
District Court did not credit this testimony for two reasons.
First, Baker contradicted himself regarding his guilt between
statements made in his initial pro se Section 2255 motion and
his testimony at the federal habeas evidentiary hearing.
Second, while discussing his separate ineffective-assistance
claim at the hearing, Baker stated that he would have accepted
a plea offer with a sentence range lower than 15-17 years
because it would “allow [him] to at least be home to see [his]
kids graduate from high school.” App. 73. But neither reason
weighs strongly against the probability that he would have
accepted the plea, nor does either come close to countervailing
13
While the fact that the 57 years’ imprisonment for the Section
924(c) counts is a mandatory minimum contributes to the
significance of the disparity in this case, we do not propose any
bright-line rule that privileges mandatory minimums as a point
of comparison in the prejudice analysis.
20
the prejudicial effect of the large sentence-exposure disparity.
The contradiction noted by the Court occurred during
the course of Baker’s federal habeas proceedings: Baker stated
in his initial and pro se Section 2255 motion that “[d]uring the
course of criminal proceedings, [he] made his counsel aware
that [t]he only possible inappropriateness [he] ‘may’ have been
involved with was misdemeanor possession of stolen
property.” Baker, 2023 WL 2889483, at *16 (quoting D. Ct.
Dkt. No. 1-2 at 8). On the other hand, at the evidentiary
hearing on his Section 2255 motion, Baker testified that he
“told [his counsel] about the crimes” and “admit[ted] [his]
guilt” to her, telling her he was “guilty of the charges.” App.
69. His counsel corroborated this, testifying at the evidentiary
hearing that Baker told her he was guilty of the charges. The
District Court nonetheless concluded that this flip-flop
concerning his guilt weighed negatively on Baker’s “overall
credibility.” Baker, 2023 WL 2889483, at *16.
Even if this contradiction concerning his guilt
undermines Baker’s general credibility to some degree, it does
not weigh heavily against the likelihood he would have pleaded
guilty pursuant to the plea agreement but for his counsel’s
error. Indeed, the fact that Baker was willing to admit his guilt
to his counsel before trial (as his counsel confirmed) tends, if
anything, to support the existence of a reasonable probability
that he would have been willing to plead guilty in order to
accept the Government’s plea offer. In any event, these
inconsistent statements do not outweigh the prejudice of the
significant sentence-exposure disparity resulting from his
counsel’s error and its likely effect on his plea calculus.
Nor does Baker’s statement that he would have
21
accepted a lower sentencing range under a plea agreement in
order to see his children graduate from high school weigh
strongly against the probability he would have taken the plea.
Baker made this remark during a course of questioning about
his separate ineffective-assistance-of-counsel claim based on
the alleged miscalculation of his criminal history category:
Q. What would you have done with respect to
that plea agreement if you understood that the
range may have been lower if you were in a
lower criminal history category?
A. I would have accepted the plea if I was in the
lower category.
Q. Why?
A. I believe that that was a timeframe that I was
willing to accept. It would allow me to at least
be home to see my kids graduate from high
school, my younger kids, and that was one of the
reasons.
Q. And why did you reject the plea agreement
that was offered to you?
A. I wanted to explore my other options, and,
you know, based upon—you know, the advice
that [my counsel] was giving me concerning
maybe beating the other two charges.
App. 73. In the District Court’s view, these comments
amounted to Baker saying “he was not willing to accept a
22
[sentencing] timeframe of fifteen-to-seventeen years” under
any circumstance. Baker, 2023 WL 2889483, at *16.
But Baker did not make any hard-and-fast statement
that he would not have accepted a 15-17 year plea offer. He
said instead that he would have accepted a plea offer with a
lower sentence exposure because, in his mistaken view, that
would have reflected an accurate criminal history category.
Extrapolating from this comment to draw the conclusion that
Baker would not have accepted the plea offer in any case, even
if he knew he was facing a consecutive 57-year mandatory
minimum, stretches his words too far. To the extent Baker’s
comments weigh against the likelihood he would have
accepted the plea deal—inasmuch as they suggest he wanted a
better deal—they are, at most, slightly probative. But they do
not outweigh the prejudice caused by his counsel’s large
miscalculation of his possible sentence and his great sentence-
exposure disparity.
The Government urges us to consider other evidence
not expressly relied on by the District Court that, in its view,
supports the Court’s decision not to credit Baker’s statement
that he would have taken the plea offer but for his counsel’s
error. But none of its asserted grounds is persuasive.
First, the Government asserts that Baker’s separate
ineffective-assistance claim, based on his belief there was a
separate plea offer for criminal possession of stolen property,
demonstrates he is not credible because the District Court
determined there was no such offer. Yet while Baker’s counsel
and the Assistant U.S. Attorney on the case testified no formal
offer was made, Baker’s counsel also testified that she had
approached the Government with a proposed resolution
23
regarding possession of stolen property but that any proposal
along those lines “was rejected.” App. 106. In any case, this
separate ineffective-assistance claim does not significantly
undermine Baker’s credibility in stating he would have
accepted the plea offer the Government did formally make.
Second, the Government argues that Baker’s testimony
regarding his second ineffective-assistance claim—that his
counsel misadvised him on his criminal history category—
contained contradictions. Specifically, Baker testified at one
point that his counsel told him he faced 15-17 years, which was
consistent with a criminal history category of III, but at other
points said his counsel told him a category of IV applied (on
which basis he mistakenly believed that, under a lower
category of III, he would face 13-15 years). The Government
contends these inconsistencies show that Baker was willing to
alter his testimony to suit his strategic purposes. But there was
considerable confusion throughout the proceedings about what
criminal history category applied. See, e.g., App. 144–45
(describing a letter from plea counsel stating a category of III
or potentially higher); PSR ¶ 92 (indicating a category of IV);
App. 180–81 (portion of sentencing transcript where category
was corrected from IV, as reflected in the presentence report,
to III). More to the point, even if these inconsistencies are
attributable to Baker (rather than merely being the result of
more widespread confusion), they are not very probative of his
credibility in stating he would have taken the plea offer but for
his counsel’s error, especially when balanced against his large
sentence-exposure disparity.
Third, the Government contends Baker’s testimony that
his counsel told him he faced 31-51 years on all six counts is
contradicted by his counsel’s handwritten notes from their plea
24
discussion, which suggest she told him a range of 36-56 years.
But his counsel also could not account for the range she
provided in her handwritten notes, ultimately stating she
“couldn’t even guess” what the figures meant. App. 113. And
Baker acknowledged it was possible she had actually advised
him it was 36-56 years.
Finally, the Government claims that Baker’s testimony
that he would have accepted the plea agreement had he known
he faced a 57-year mandatory minimum on the Section 924(c)
counts is counterbalanced by evidence that he was determined
to go to trial. Specifically, it points to plea counsel’s testimony
that Baker “had a state court case where he got a lot of time
and the conviction got reversed, [which] he kept bringing . . .
up. That—I think that he thought if he went to trial and lost
that there would be significant issues for appeal.” App. 119.
By this, his counsel was apparently referring to an earlier
conviction related to a robbery in New Jersey. There, Baker
was sentenced to 50 years in New Jersey state prison. He
appealed, and the case was remanded for an evidentiary
hearing regarding ineffective assistance of counsel. Baker later
accepted a negotiated sentence of 20 years’ custody with an 8-
year parole ineligibility. On the sole basis of his counsel’s
testimony above, the Government speculates that this “prior
experience may have made it more likely that he would reject
a plea offer and take his chances at trial and on appeal.”
Response Br. at 23. This speculation, based on Baker’s
counsel’s off-hand conjecture, is insufficient to undermine his
credibility.
Similarly, the Government argues Baker was committed
to a trial based on his testimony that he believed he had a
stronger defense to two of the three bank robberies due to a
25
relative lack of physical evidence. But this overlooks that, in
the relied-on part of Baker’s testimony, he was speaking to
what his counsel told him regarding the strength of the
Government’s case. More importantly, nowhere did Baker
state he was committed to putting the Government’s case to the
test at trial.
For these reasons, we credit Baker’s testimony that, had
he known he actually faced a 57-year mandatory minimum on
the Section 924(c) counts rather than 21 years, he would have
taken the plea offer.
iii. Baker’s Insistence on Innocence
We also find error in the weight the District Court gave
to Baker’s insistence on his own innocence in his criminal
proceedings after he rejected the plea offer. Noting that Baker
“maintained his innocence” throughout the criminal
proceedings, including at sentencing, the Court determined that
his “protestations of innocence,” while not dispositive,
weighed against the likelihood he would have accepted the plea
offer. Baker, 2023 WL 2889483, at *15.
As explained below, while maintaining innocence may
in some circumstances be relevant to determining the
likelihood a defendant would have accepted a plea agreement
but for an error by counsel, we do not find it strongly probative
here.
Various courts have weighed a defendant’s insistence
on his innocence during criminal proceedings against the
likelihood he would have accepted a plea agreement but for
counsel’s error, reasoning that it makes it less probable a
26
defendant would have been willing to admit guilt in accepting
a plea offer. See, e.g., Sanders v. United States, 341 F.3d 720,
723 (8th Cir. 2003) (“A defendant who maintains his
innocence at all the stages of his criminal prosecution and
shows no indication that he would be willing to admit his guilt
undermines his later § 2255 claim that he would have pleaded
guilty if only he had received better advice from his lawyer.”);
see also Cullen v. United States, 194 F.3d 401, 407–08 (2d Cir.
1999); Humphress v. United States, 398 F.3d 855, 859 (6th Cir.
2005); United States v. Stevens, 149 F.3d 747, 748 (8th Cir.
1998); Jones v. Wood, 114 F.3d 1002, 1012 (9th Cir. 1997);
Osley v. United States, 751 F.3d 1214, 1224–25 (11th Cir.
2014). At the same time, courts have typically noted that
insistence on innocence does not by itself determine whether a
defendant can show a reasonable probability he would have
accepted a plea but for counsel’s error. See, e.g., Cullen, 194
F.3d at 407; Osley, 751 F.3d at 1224. We have not addressed
the issue precedentially or at length, 14 and thus we do so today.
14
See United States v. Tarnai, 782 F. App’x 128, 129–31 (3d
Cir. 2019) (concluding there was no reasonable probability the
government would have kept a plea offer open when all
evidence pointed to the defendant being “unwilling to admit
guilt” (internal quotation marks omitted)); Cordero v. Warren,
673 F. App’x 254, 257 (3d Cir. 2016) (stating that an assertion
of innocence, while relevant, is “not necessarily conclusive
proof that a defendant would not have accepted a plea”);
United States v. Seeley, 574 F. App’x 75, 80 (3d Cir. 2014)
(weighing a defendant’s “steadfast insistence” on innocence
against the likelihood she would have accepted a plea offer);
Wheeler v. Rozum, 410 F. App’x 453, 458 (3d Cir. 2010)
(concluding the state court’s application of Strickland was not
27
We agree that an insistence on innocence does not by
itself resolve whether a defendant would have taken a plea
offer but for his counsel’s error. See, e.g., Cullen, 194 F.3d at
407 (noting the factor is not dispositive). We also note some
additional considerations that may counsel for limiting the
weight of such evidence as a general matter.
First and foremost, defendants have a Fifth Amendment
right to avoid self-incrimination, U.S. Const. amend. V, and
“factoring in [a defendant’s] assertion of his innocence would
inappropriately punish him for exercising his Fifth
Amendment right,” Morris, 470 F.3d at 603; see also Griffin,
330 F.3d at 738 (“[A] defendant must be entitled to maintain
his innocence throughout trial under the Fifth Amendment.”).
Weighing insistence on innocence too greatly in our
reasonable-probability inquiry risks unduly deterring
defendants from exercising this constitutional right.
Additionally, defendants may be advised by their
counsel to maintain their innocence in their criminal
proceedings after rejecting a plea. Such remarks, made on the
advice of counsel, do not necessarily bear on defendants’ own
calculus during plea deliberations—the touchstone of the
reasonable-probability inquiry.
Further, defendants can plead guilty under a plea
agreement for reasons separate from their factual innocence or
guilt. See Brady v. United States, 397 U.S. 742, 749–50
(1970); North Carolina v. Alford, 400 U.S. 25, 37 (1970)
unreasonable where it relied in part on “protestations of
innocence to conclude that [the defendant] was not prejudiced
by counsel’s failure to convey the plea offer to him”).
28
(“Whether [the defendant] realized or disbelieved his guilt, he
insisted on his plea because in his view he had absolutely
nothing to gain by a trial and much to gain by pleading.”); see
also John H. Blume & Rebecca K. Helm, The Unexonerated:
Factually Innocent Defendants Who Plead Guilty, 100 Cornell
L. Rev. 157 (2014); Jed S. Rakoff, Why Innocent People Plead
Guilty, N.Y. Rev. Books, November 20, 2014. Maintaining
innocence, therefore, is not wholly at odds with a defendant’s
claim that he would have been willing to plead guilty pursuant
to an agreement but for his counsel’s error.
It may also be necessary to adjust the probative weight
of a defendant’s insistence on innocence based on when it
occurs in the criminal proceedings. While protesting
innocence during plea negotiations may be probative of
whether a defendant would have taken a plea offer but for his
counsel’s error, inasmuch as those comments reflect on the
defendant’s state of mind at the relevant time, insistence on
innocence will likely have less weight after a plea has been
rejected. For instance, if a defendant maintains his innocence
during plea negotiations in a manner that suggests steadfast
unwillingness to accept a plea or reflects a compelling desire
to test the Government’s case at trial, that may indicate he
likely would not have accepted a plea but for any error by
counsel. See, e.g., Osley, 751 F.3d at 1224–25 (defendant
repeatedly maintained innocence “both before and after trial”).
But see Griffin, 330 F.3d at 738 (“Defendants must claim
innocence right up to the point of accepting a guilty plea, or
they would lose their ability to make any deal with the
government.”). But insistence on innocence in proceedings
after the denial of a plea agreement is less likely to be probative
of the defendant’s state of mind and calculus during plea
negotiations.
29
Additionally, where there is a significant disparity in the
comparative sentence exposures between accepting a plea and
going to trial, that objective figure may be even more probative
of whether the defendant would have taken a plea agreement
but for counsel’s error than any implications that can be drawn
from his assertions of innocence. See Cullen, 194 F.3d at 407;
Knight, 981 F.3d at 1103.
Applying these principles here, Baker’s insistence on
innocence in his criminal proceedings after rejecting the plea
offer is, at best, weakly probative of the likelihood he would
have accepted a plea agreement but for his counsel’s error. He
testified that he maintained his innocence after rejecting the
plea based on the advice of his counsel. He also admitted his
guilt to his counsel before trial, as she corroborated. While his
repeated remarks on his innocence at sentencing, noted by the
District Court, might suggest a general unwillingness to admit
his guilt, especially given that he was not required to make such
remarks at sentencing, that inference is rebutted in this case by
Baker’s testimony that he maintained his innocence on the
advice of his counsel and that he conceded his guilt to her
before trial. Thus, Baker did not maintain a “steadfast and
unmoving claim” of innocence, cf. Jones, 114 F.3d at 1012, or
“maintain[] his innocence at all the stages of his criminal
prosecution and show[] no indication that he would be willing
to admit his guilt,” cf. Sanders, 341 F.3d at 723.
Even if we draw a negative inference from Baker’s
insistence on innocence after he rejected the plea, its effect on
prejudice is significantly outweighed by the substantial
disparity in his potential sentence exposure between accepting
the plea and going to trial, the magnitude of which Baker did
not understand due to his counsel’s erroneous miscalculation
30
of his possible sentence on the Section 924(c) charges. See
Cullen, 194 F.3d at 407 (concluding that, while a defendant’s
insistence on innocence was a relevant factor in the reasonable-
probability inquiry, he “might well have abandoned his claim
of innocence” “if he had been properly informed of the
significant difference between the likely sentencing ranges
after trial and under the offered plea bargain”); see also Kearn,
90 F.4th at 1312 (concluding that a disparity provided
objective evidence of the likelihood a defendant would have
taken a plea despite statements supporting the conclusion that
he would have refused to plead guilty).
C. Conclusion
Looking at the available evidence, we conclude that
Baker has demonstrated a reasonable likelihood he would have
taken the plea offer but for his counsel’s error in calculating his
sentence exposure on the Section 924(c) counts. Contrary to
the District Court, we credit his testimony that he would have
done so. The significant disparity in his comparative sentence
exposure between accepting the plea and proceeding to trial,
the scope of which he did not know due to his counsel’s
miscalculation, weighs heavily in favor of finding prejudice.
And Baker’s insistence on his innocence after he rejected the
plea weighs, at most, weakly against the likelihood he would
have accepted it but for his counsel’s error. 15 All of this creates
15
As noted above, Baker’s counsel only met with him to
discuss the plea four days after its initial expiration date, even
though he had only a month to consider it (February 17 to
March 17, 2010). This limited time to consider the plea, along
with the lack of any evidence regarding whether or how long
31
a probability Baker would have accepted the plea “sufficient to
undermine [our] confidence in the outcome.” Strickland, 466
U.S. at 694. He has thus demonstrated prejudice. See id.;
Lafler, 566 U.S. at 174. Because his counsel’s substantial
miscalculation of his relative sentence exposure was
objectively unreasonable, see supra Section II. A., his counsel
was constitutionally ineffective.
Accordingly, we reverse the District Court’s denial of
Baker’s ineffective-assistance claim brought pursuant to 28
U.S.C. § 2255 and remand to the District Court with an
instruction to order the Government to reoffer the original plea
agreement to Baker. See Lafler, 566 U.S. at 174; Knight, 981
F.3d at 1107–10. Should Baker accept the offer, the Court may
then exercise its discretion in determining the correct remedy.
See Lafler, 566 U.S. at 174–75; Knight, 981 F.3d at 1107–08;
see also Tr. of Oral Arg. at 11, 23 (both parties agreeing that
this is the correct remedy).
the offer was extended, further demonstrates the irregularity in
Baker’s plea deliberations.
32