Parsley v. U.S.A

• Decision Date: 17 May 2010
• Docket Number: No. 09-1690.,09-1690.
• Parties: Joseph PARSLEY, Petitioner, Appellant,v.UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

604 F.3d 667

Joseph PARSLEY, Petitioner, Appellant,v.UNITED STATES of America, Respondent, Appellee.

No. 09-1690.

United States Court of Appeals, First Circuit.

Heard April 5, 2010.

Decided May 17, 2010.

Jeanne M. Kempthorne, for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief for appellee.

Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.

LYNCH, Chief Judge.

Joseph Parsley was convicted for his role in a massive drug importation and distribution conspiracy in Maine. He was sentenced to eighty-seven months' imprisonment. Later, he filed a motion under 28 U.S.C. § 2255 in the district court to vacate his sentence, on the ground that he had not been properly advised by his trial counsel on the option of not going to trial but instead entering an “open” guilty plea and then contesting at sentencing the quantity of drugs attributable to him. This, Parsley argues, was a constitutionally deficient performance, under the first prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Parsley claims that because he did not fully consider this option, and indeed because trial counsel did not urge it, he did not plead and so was denied the opportunity for a two-level reduction for acceptance of responsibility in his Sentencing Guidelines offense level. We affirm the district court's conclusion that trial counsel did not render ineffective assistance on these facts, which are largely uncontested and not clearly erroneous.

I.

We take the facts as found by the district court and based on the uncontested portions of the record. To the extent any of the district court's findings of fact are in dispute, we conclude there was no clear error.

On October 13, 2005, Parsley was indicted along with ten other defendants for, inter alia, conspiracy to import marijuana from a place outside the United States, under 21 U.S.C. §§ 960(b)(2), 963, and conspiracy to distribute and possess with the intent to distribute marijuana, under 21 U.S.C. §§ 841, 846. The conspiracy lasted from November 2003 to June 2005 and involved the importation of marijuana from Canada. Parsley's role was limited to that of a courier, picking up and transporting the drugs after the drugs arrived in the United States.

Parsley was arrested in New York on November 4, 2005, and was initially represented by a New York lawyer. This lawyer in turn asked trial counsel, a Maine attorney with about twenty years of experience specializing in criminal defense, to act as local counsel in proceedings in the district of Maine. Parsley paid trial counsel a flat fee, which was not contingent on whether the case went to trial.

Plea negotiations followed. Both sides believed that the government had a strong case against Parsley. In the negotiations, the government insisted that Parsley accept responsibility for at least 750 kilograms of marijuana if there was to be a plea agreement. Parsley refused. That 750 kilograms of marijuana corresponded to the total amount of marijuana that had been seized; the government believed it could prove a much larger amount if put to its proof. Having reviewed discovery materials with his lawyers, Parsley insisted that he was responsible for a lesser quantity of drugs than 750 kilograms. The government refused to lower the drug quantity in the bargaining, and Parsley was counseled by the New York lawyer to take the plea agreement.

As these plea negotiations broke down, Parsley decided to proceed with Maine counsel alone. Parsley believed that the New York lawyer simply “wanted to get rid of the case” and was not willing to make further efforts without receiving more money. When he agreed to take the lead role, the Maine trial counsel decided not to ask for additional compensation.

At the time trial counsel took over the case, Parsley was determined to take the case to trial if he could not get a satisfactory plea agreement with the government. Parsley's New York lawyer had missed some deadlines on filing suppression motions, which trial counsel immediately turned to addressing. Maine counsel's understanding was that at this point Parsley had no interest in pleading guilty, and there was, as a result, only limited further discussion about a guilty plea.

Nonetheless, counsel did discuss with Parsley his different options and the possible sentencing ramifications of those choices. Counsel explained the possibility of receiving a sentencing reduction for acceptance of responsibility. Counsel also discussed with Parsley the possibility of making an open guilty plea and then contesting the drug quantity numbers at sentencing.

Having reviewed the government's evidence, counsel advised Parsley that challenging the drug quantity at sentencing would be a risky strategy because the government would only have to prove drug quantity under the preponderance-of-the-evidence standard. Trial counsel believed that the government could prove a larger drug quantity than 750 kilograms. He also informed Parsley that forcing the government to prove drug quantity could be enough to prevent Parsley from receiving an acceptance-of-responsibility reduction. Counsel testified that although he always discussed with his clients the possibility of pleading guilty and contesting the drug quantity at sentencing, “I don't know that I would ever recommend for somebody to do it.”

Trial counsel did, however, have some difficulty convincing Parsley that pleading in federal courts worked differently from what Parsley had experienced in New York state court. Parsley believed that he could agree with prosecutors to a specific sentence. Counsel testified that Parsley never believed him that in federal court, even after reaching an agreement with the government, the district court itself would make its own findings on drug quantity and the appropriate sentence.

At some point before trial, the federal prosecutor on the case held a “reverse proffer” with Parsley and counsel, during which the prosecutor presented to Parsley the evidence the government would introduce at trial. Parsley had requested a meeting with the federal prosecutor because he wanted to negotiate a lower sentence, and trial counsel believed the meeting would help Parsley understand the reality of his situation.

The federal prosecutor held the meeting because he felt that the evidence in the case was overwhelming and wanted to make sure that Parsley understood the consequences of going to trial. At this point, all of the other defendants in the conspiracy had pled guilty. The prosecutor made clear to Parsley in this meeting that the government was not willing to negotiate a lower drug quantity and that if Parsley elected to go to trial, the government could prove an even larger amount. The prosecutor also told Parsley that if Parsley's concern was only the quantity with which he was being charged, Parsley had the option of pleading guilty and then contesting the quantity at sentencing.

Parsley later testified that following the meeting he was confused by the prosecutor's statement that Parsley could plead guilty and just contest the drug quantity at sentencing. But Parsley apparently believed trial counsel's advice regarding the risks associated with this course of action. Although Parsley had earlier reconsidered pleading guilty due to pressure from his family, on realizing that he could not convince the government to lower his sentence by lowering the drug quantity by agreement, Parsley was determined to go to trial.

Parsley also testified that he decided to go to trial in order to contest the drug quantity, but the district court rejected this claim. Trial counsel testified he would never advise a client to follow such a strategy and that he did not do so in this case, and the district court credited this testimony.

On December 14, 2006, Parsley was convicted by a jury on all counts following a four-day trial. Parsley's counsel's two-pronged trial strategy was to attack the credibility of the government's witnesses and to portray Parsley in as positive a light as possible. Consistent with trial counsel's testimony about his advice to Parsley, the defense did not at trial attempt to contest the quantity of drugs involved in the case.

Because of disagreements with trial counsel over how to approach his sentencing, Parsley sought assignment of other counsel and was provided with representation from the local federal public defender's office at his June 8, 2007, sentencing hearing. At that hearing, Parsley sought a sentence of seventy months; the government sought a sentence of ninety-seven months, which was at the bottom of the range recommended in Parsley's presentence report (“PSR”).

Parsley's PSR found that Parsley was responsible for only 428.36 kilograms of marijuana, based on the quantity Parsley personally transported, rather than the conspiracy-wide amount on which the federal prosecutor had relied during the reverse proffer.¹ The PSR also recommended a sentencing level reduction for Parsley's minor role in the conspiracy. The government did not challenge either recommendation.

At sentencing, the federal public defender for Parsley acknowledged that it was a very rare case in which a defendant benefitted from trying to dispute sentencing issues during trial. He said his client was truly remorseful, and he attempted to reconcile the tension between that remorse and Parsley's failure to plead guilty by saying his client may have been confused that a plea agreement was needed just to have entered a plea. He acknowledged that his client had indeed met with the prosecutor who had laid out the government's potential case against Parsley. At no time did the federal public defender say Parsley's trial counsel had rendered ineffective assistance or ask the court not to go forward with sentencing.

The district court adopted both PSR recommendations and departed downward one level from the PSR's recommended criminal...