U.S. v. Booth, 03-3893.

• Citation: 432 F.3d 542
• Decision Date: 29 December 2005
• Docket Number: No. 03-3893.,03-3893.
• Parties: UNITED STATES of America v. Brian BOOTH, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

432 F.3d 542

UNITED STATES of America v. Brian BOOTH, Appellant.

No. 03-3893.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) December 6, 2005.

December 29, 2005.

Tina Schneider, Portland, ME, for Appellant.

James T. Clancy, Office of United States Attorney, Harrisburg, PA, for Appellee.

Before RENDELL, FISHER and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

Brian Booth appeals from the District Court's decision denying his motion to vacate his sentence brought pursuant to 28 U.S.C. § 2255. Booth was convicted by a jury on two counts relating to his role in setting off a pipe bomb at an apartment building. Booth contends that his trial counsel — aware of the substantial evidence against Booth and that Booth did not want to cooperate with the Government — rendered ineffective assistance of counsel by not informing Booth that he could have entered an "open" guilty plea to both counts without proceeding to trial, potentially entitling him to a three-level reduction for acceptance of responsibility under the United States Sentencing Guidelines.¹ Because we conclude that Booth's motion set forth sufficient allegations to require an evidentiary hearing, we will vacate the judgment of the District Court and remand for an evidentiary hearing on the merits of Booth's claims.

I.

Early in the morning of May 15, 1998, simultaneous explosions from two pipe bombs rocked a multi-unit rental property located in Stroudsburg, Pennsylvania. Fortunately, none of the seven sleeping residents inside the apartment building was injured. The blast, however, caused significant property damage. An investigation following the incident revealed that the pipe bombs, which were made out of copper pipes and packed with smokeless powder, had been placed on the rear kitchen door and the front side door of the building. Additional evidence uncovered during the investigation overwhelmingly established that Booth was responsible for the explosions.

Thereafter, the Government indicted Booth on two counts. Count one charged Booth with maliciously damaging by explosives property affecting interstate commerce, in violation of 18 U.S.C. § 844(i). Count two charged Booth with possession of an unregistered firearm in the form of a bomb, in violation of 18 U.S.C. §§ 5841, 5861(d), and 5871.

Prior to trial, the Government and Booth's trial counsel entered into plea negotiations. The Government's initial plea offer was for Booth to plead guilty to count one of the indictment. In exchange, the Government offered to dismiss count two of the indictment, recommend that Booth be sentenced to the mandatory minimum sentence of 60 months imprisonment, and possibly bring a motion for downward departure pursuant to 18 U.S.C. § 3553(e) if it determined that Booth rendered substantial assistance in the investigation of a possible co-defendant.

Booth rejected the Government's plea offer and made a counter-offer to plead guilty to count two of the indictment in exchange for the Government's dismissal of count one. The Government informed Booth's counsel that it would consider the plea to the lesser charge only if Booth would give a proffer concerning his own culpability and the criminal involvement of any other participants involved in the bombing. Booth balked at the proposal because he did not want to cooperate against anyone else involved in the crime.

Because the parties could not agree on an acceptable resolution of the charges, Booth proceeded to a jury trial. The jury subsequently found Booth guilty of both charges.²

At the sentencing hearing, the District Court determined that Booth's sentencing range under the Sentencing Guidelines was 78 to 97 months imprisonment. The District Court sentenced Booth to concurrent 90-month sentences of imprisonment, concurrent three-year terms of supervised release, and restitution in the amount of $2,052.³ The District Court did not consider a downward adjustment for acceptance of responsibility pursuant to section § 3E1.1 of the Sentencing Guidelines because Booth had proceeded to trial and challenged his guilt. We affirmed the judgment of conviction on March 14, 2001.

On June 13, 2002, Booth filed a pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Booth alleged in his motion that his trial counsel, aware that the evidence against Booth was overwhelming and that Booth did not want to cooperate with the Government, did not inform Booth that he could have entered an open guilty plea to both counts of the indictment, likely entitling him to a three-level reduction for acceptance of responsibility. Responding to Booth's motion to vacate sentence, the Government argued that "acceptance of responsibility was not an option in [Booth's] case because of the mandatory minimum sentence applicable to the charge against him." In addition, the Government stated that Booth's trial counsel "fully advised Petitioner of his plea options," and that Booth's "belief that he could have received a more favorable plea resolution is a pipe dream."

The Government's response relied primarily upon a declaration from Booth's trial counsel. That declaration corroborates the history of plea negotiations between Booth and the Government and states that Booth had told his trial counsel that "he could not accept the terms of the proffer letter, namely, cooperating against anyone else involved":

Booth was advised by me of the process by which he could obtain a reduction in the sentence he was facing. He chose not to accept the terms of the proffer letter, or, more specifically, to attempt to render substantial assistance to the Government by telling them everything he knew about the crimes and who was involved.

The declaration also states that Booth was informed of all possible defenses and mitigating factors that were available at sentencing, and that Booth was informed of the "extensive factual investigation" conducted by his trial counsel's investigator. Notably absent from the declaration, however, was any indication that Booth's trial counsel had discussed with Booth the option of entering an open plea to counts one and two.

On July 18, 2003, the District Court denied Booth's motion without holding an evidentiary hearing. The District Court concluded that Booth's trial counsel adequately advised him of the consequences of his plea decisions because he fully informed Booth of all plea negotiations with the Government. The District Court characterized Booth's argument that he could have received a lower sentence by entering an open plea as "highly speculative." The District Court stated that Booth had the opportunity for a lesser sentence at count two of the indictment, that he had been aware of the "costs of that option" (i.e., cooperating against a possible co-defendant), and that he had rejected the option and gone to trial because "those costs were not to his liking." The District Court further determined that Booth was required to go to trial on both counts because he chose not to accept the Government's plea offer to plead guilty to count two. The District Court ultimately concluded that Booth's argument that he could have received a lighter sentence was futile because "[e]ven if he could have received a lighter sentence for Count II, his sentence for Count I remains at 90 months."

II.

Booth appealed the District Court's denial of his motion to vacate sentence, and we granted a certificate of appealability. We have jurisdiction over Booth's appeal pursuant to 28 U.S.C. § 2253. We review the District Court's decision to deny an evidentiary hearing on a motion to vacate sentence for abuse of discretion. United States v. McCoy, 410 F.3d 124, 131 (3d Cir.2005).

III.

Although a district court has discretion whether to order a hearing when a defendant brings a motion to vacate sentence pursuant to 28 U.S.C. § 2255, our caselaw has imposed limitations on the exercise of that discretion. In considering a motion to vacate a defendant's sentence, "the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir.1989). See also R. GOVERNING § 2255 CASES R. 4(b). The district court is required to hold an evidentiary hearing "unless the motion and files and records of the case show conclusively that the movant is not entitled to relief." Id. We have characterized this standard as creating a "reasonably low threshold for habeas petitioners to meet." McCoy, 410 F.3d at 134 (quoting Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir.2001)). Thus, the district court abuses its discretion if it fails to hold an evidentiary hearing when the files and records of the case are inconclusive as to whether the movant is entitled to relief. Id. at 131, 134 ("If [the] petition allege[s] any facts warranting relief under § 2255 that are not clearly resolved by the record, the District Court [is] obligated to follow the statutory mandate to hold an evidentiary hearing.").

In this case, Booth alleges that his trial counsel was ineffective because he failed to inform Booth of all possible plea options to resolve his criminal case and entitle him to a more favorable sentence. In order to determine whether Booth's trial counsel was constitutionally ineffective under the Sixth Amendment, we must apply the familiar standard developed in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny. Under that standard, a criminal defendant may demonstrate that his representation was constitutionally inadequate by proving: (1) that his attorney's performance was deficient, i.e., unreasonable under prevailing professional standards; and (2) that he was prejudiced by the attorney's performance. Forte, 865 F.2d at 62 (citing Strickland, 466 U.S. at 687, 694, 104 S.Ct. 2052). Under the first prong, "[j]...