Gordon v. U.S.

Decision Date07 March 2008
Docket NumberNo. 05-16703.,05-16703.
Citation518 F.3d 1291
PartiesKirlew S. GORDON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Courtland L. Reichman (Court-Appointed), King & Spalding, LLP, Atlanta, GA, for Gordon.

Michael Boysie Billingsley, Joyce White Vance, Asst. U.S. Atty., Birmingham, AL, for U.S.

Appeal from the United States District Court for the Northern District of Alabama.

Before PRYOR, KRAVITCH and ALARCÓN,* Circuit Judges.

PRYOR, Circuit Judge:

We sua sponte vacate and reconsider our original opinion in this matter. We substitute the following opinion for our original opinion.

This appeal requires us to decide two issues about the relation between the standard that governs plain error review on direct appeal and the standard that governs collateral review of ineffective assistance of counsel. The issues are whether counsel for Kirlew Gordon rendered ineffective assistance by neglecting to object to two alleged errors of the district court: (1) a failure to inform Gordon of the nature of the charges to which he was pleading, and (2) a failure to address Gordon personally concerning his right to allocute. Gordon pleaded guilty to one count of engaging in a continuing criminal enterprise, 21 U.S.C. § 848, and one count of conspiracy to import cocaine, 18 U.S.C. § 371. At Gordon's plea colloquy, the district court did not explain the nature of these charges to Gordon. The court asked Gordon whether his counsel had explained to him the nature of the charges and allowed the prosecutor to recite at length an earlier discussion in which the prosecutor clarified for Gordon, in the presence of Gordon's counsel, the nature of the charges. Gordon stated that his attorney had explained the charges to him, he understood them, and the prosecutor's description of their earlier conversation was accurate. Before it sentenced Gordon, the district court asked counsel for both parties whether they had anything further to say, but the court did not address Gordon personally to determine whether he wanted to speak. As to both matters, we conclude that counsel for Gordon did not render ineffective assistance and deny Gordon's petition.

I. BACKGROUND

In November 1999, Gordon agreed to plead guilty to engaging in a continuing criminal enterprise and conspiring to import cocaine, which were two counts of a four-count indictment, and Gordon waived his right to "appeal from any sentence, so long as it is within the guideline range." In exchange, the government agreed to recommend that Gordon be sentenced at the low end of the Guidelines range and receive a three-level reduction for acceptance of responsibility, and the government agreed to file a motion for downward departure for providing substantial assistance. At his plea hearing, Gordon testified that he read and understood English. He said his attorney had explained to him the elements of the offenses and the potential penalties.

The prosecutor then stated to the court that, earlier that morning, Gordon had expressed concern that he seemed to be pleading guilty to causing the death of Michelle Goodwin, a drug courier who died after cocaine packages she was carrying in her body burst and the cocaine entered her bloodstream. The prosecutor stated that he explained to Gordon, in the presence of Gordon's attorney and a United States Marshal, that Gordon was not being charged with causing Goodwin's death, but that the continuing criminal enterprise count to which Gordon was pleading guilty incorporated by reference the provisions and punishments for another offense. See 21 U.S.C. § 846. A defendant who is found guilty of conspiring to import drugs under section 846 is subject to a 20-year mandatory minimum sentence if a person is seriously injured or dies as a result of the "use" of the drugs.

The prosecutor stated that Gordon also expressed concern that the government stated that the profits obtained from the drug activity totaled over $1 million. The prosecutor explained to Gordon that there was no documentary evidence that Gordon received $1 million in profits, but that there were Western Union receipts evidencing that over $1 million had been wired to his wife, Ann Marie Gordon, and several aliases used by her.

The prosecutor stated that, after these matters had been explained to Gordon, Gordon consulted with his attorney for a few minutes and then stated he was satisfied with these answers. The district court then asked Gordon whether the conference described by the prosecutor took place and whether the prosecutor's summary was an approximate description of what the prosecutor had said. Gordon replied in the affirmative. The prosecutor then recited the facts that the government was prepared to prove at trial.

The prosecutor stated that, in July 1993, Michelle Goodwin, the wife of a U.S. Army sergeant, collapsed at Fort McClellan and soon afterward died in a hospital. An autopsy revealed over 30 bindles of cocaine in her stomach and colon, at least two of which had leaked cocaine into her bloodstream and caused her death. Her death prompted an investigation by the U.S. Army, the Drug Enforcement Administration, the U.S. Customs Service, the Federal Bureau of Investigation, and a local drug task force into the source of the drugs. These agencies investigated rumors that people with Jamaican connections were smuggling drugs into the Anniston, Alabama, area, and their investigation ultimately led them to Kirlew Gordon and his wife, Ann Marie.

The sworn statements of numerous cooperating individuals and substantial documentary evidence — phone records, Western Union receipts, and Western Union computer records evidencing over $1 million in profits sent to Ann Marie or one of her known aliases — would establish that the Gordons had been running a drug smuggling and distribution operation since 1993. Kirlew controlled the operation from Anniston and Ann Marie assisted him in Jamaica and Palm Beach, Florida. The Gordons recruited people to travel from Atlanta or Palm Beach to Kingston, Jamaica, where they would secrete cocaine on or in their bodies at a house identified and photographed by government agents. The recruits would then travel to Atlanta where they either boarded a bus to Anniston or were met by Kirlew and transported to Anniston. Several cooperating witnesses, including some of Gordon's distributors and other drug couriers, would testify consistent with these details and would state that Kirlew and Ann Marie ran the organization.

The last known overt act of the conspiracy occurred on September 3, 1997, when Kirlew and his sister, Leonie Grant, were arrested traveling west on Interstate 20 shortly after crossing into Alabama. An anonymous caller, suspected of being Ann Marie, provided specific information about the individuals in the car, including their names, the type of luggage they would be carrying, the airline they would be flying from Palm Beach to Atlanta, and that Grant would be the one transporting the cocaine. After being questioned by officers, Grant removed a package of crack cocaine from her underwear and ultimately removed a second one from her vagina. The net weight of cocaine base was almost half a kilogram. Grant would testify that she brought cocaine to Anniston for the Gordons on several earlier occasions. A DEA agent who had reviewed all of the witness statements and documentary evidence would testify that the Gordons' organization had distributed between 10 and 24 kilograms of cocaine base.

After the factual basis of the plea agreement had been described, Gordon pleaded guilty as follows:

COURT: Mr. Gordon, you heard what the government expects to prove ... and you heard what Mr. McGregor said the substance of your conversation and your lawyer's conversation with him were this morning where it was explained ... exactly what you are charged [with] in this case.

GORDON: Yes, ma'am.

COURT: Do you understand now?

GORDON: Yes, ma'am.

COURT: Having heard this, how do you plead to the offense of a continuing criminal enterprise in Count One?

GORDON: I plead guilty.

COURT: How do you plead to Count Four of the indictment —

GORDON: Guilty.

COURT: — the conspiracy?

GORDON: Guilty, Your Honor.

COURT: Are the statements basically correct?

GORDON: Yes, Your Honor.

The district court found Gordon guilty of counts 1 and 4 and dismissed counts 2 and 3 upon motion of the government.

At Gordon's sentencing hearing, the court first addressed the motion of the government for a downward departure based on substantial assistance. See United States Sentencing Guidelines § 5K1.1 (Nov. 1999). Regarding that motion, the prosecutor stated, "The government believes that to a fairly significant extent Mr. Gordon was telling the truth. We are unsure, however, concerning his statements about giving all of the money to his wife and codefendant, Ann Marie Gordon. He may well have done that." The prosecutor stated that "virtually all of the information related to us was previously known to the government prior to his cooperation," but the prosecutor explained that Gordon "provided us with at least two or three more good leads and good evidence" and the recommended 18-year sentence reflected the amount of cooperation Gordon provided.

The district court overruled Gordon's objections to the presentence investigation report, heard from defense counsel regarding Gordon's motion for downward departure, and asked whether the defense had anything to say before the sentence was imposed. The court did not address Gordon personally or ask him whether he had anything to say. The court adopted the facts in the presentence investigation report and calculated a Guidelines range of 262 to 327 months of imprisonment. The court denied Gordon's motion for downward departure without comment and the motion of the government for the same because "telling the truth to a fairly significant extent is actually...

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