Gilbert v. United States
| Docket Number | 21-2806 |
| Decision Date | 07 April 2023 |
| Citation | 64 F.4th 763 |
| Parties | Dominique Dushon GILBERT, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Eastern District of Michigan at Flint. Nos. 4:19-cr-20029; 4:21-cv-10553— Matthew F. Leitman, District Judge.
ARGUED: Craig A. Daly, CRAIG A. DALY, P.C., Royal Oak, Michigan, for Appellant. Jessica V. Currie, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Craig A. Daly, CRAIG A. DALY, P.C., Royal Oak, Michigan, for Appellant. Nancy Abraham, UNITED STATES ATTORNEY'S OFFICE, Flint, Michigan, for Appellee.
Before: SUHRHEINRICH, COLE, and MURPHY, Circuit Judges.
Does trial counsel render ineffective assistance of counsel if he gives incorrect advice while a defendant is considering a plea deal with the government but then recognizes and rectifies his mistake prior to sentencing? The petitioner here claims that trial counsel does so in this appeal from the denial of a 28 U.S.C. § 2255 petition. The petitioner also faults trial counsel for failing to object when the district court ran his aggravated identity theft sentence consecutive rather than concurrent to his state parole revocation sentence, and for not seeking a downward adjustment under USSG § 5G1.3. He faults appellate counsel for failing to raise the consecutive-versus-concurrent and USSG § 5G1.3 issues on direct appeal.
Here, the question of whether trial counsel's performance was "Strickland deficient" is best answered by determining whether there was prejudice. Even if the petitioner could demonstrate that trial counsel's performance—initial error followed by correction—was ultimately deficient performance, he failed to present evidence of prejudice. The district court also correctly concluded that sentences imposed under the aggravated identity theft statute must run consecutive to all other (including state) sentences and are not subject to USSG § 5G1.3 adjustments. Therefore, all the petitioner's ineffective assistance and merits claims fail.
On June 22, 2018, local police arrested Petitioner Dominique Gilbert for printing false identifications and credit cards in his home. Because Gilbert was on parole for a state conviction, he was returned to the custody of the Michigan Department of Corrections (MDOC). On August 1, 2018, federal authorities charged Gilbert in a criminal complaint with several identity theft crimes.
On August 6, 2018, the district court issued a writ of habeas corpus ad prosequendum directing the MDOC to deliver Gilbert to federal court for arraignment on September 18, 2018. Gilbert appeared as ordered; Barry Wolf was appointed as counsel for Gilbert; and Gilbert consented to federal detention pending trial. Gilbert was thus detained by the United States Marshals Service in the Genesee County Jail, not in an MDOC state facility.
There he remained until, after several agreed-to continuances and continuing negotiations, Gilbert pleaded guilty to a superseding information charging him with one count of possessing device-making equipment, in violation of 18 U.S.C. § 1029(a)(4) (Count 1) and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (Count 2). In their Rule 11(c)(1)(C) agreement, the parties agreed that: (1) Gilbert's guideline range was 39 to 45 months; (2) the sentence on Count 1 must be at least 15 months; (3) the sentence on Count 2 must be at least 24 months; and (4) the Count 2 sentence would run "consecutive to any sentence imposed on count one." During the plea hearing, the court reminded Gilbert that Count 2 "will run consecutive to any other term of imprisonment that I impose in this case," and that "24 of those months have to be served consecutively to the sentence imposed on Count 1 of the superseding information." The district court did not mention that the aggravated identity theft sentence would run consecutive to any state sentence.
On June 29, 2018, before the federal charge and proceedings, the MDOC issued Gilbert a notice of parole violation. A year later, on July 19, 2019, the Michigan Parole Board (the Board) revoked Gilbert's parole and sentenced him to at least 24 months in custody,1 upon finding that Gilbert "cannot be managed in the community." The Board set his "reconsideration [of parole] date" at June 24, 2020. This was 24 months after the violation date, June 22, 2018, which meant that the MDOC credited Gilbert's time in pretrial custody.
Meanwhile, Gilbert's federal sentencing was approaching. After reviewing Gilbert's presentence report, Wolf realized that he had mistakenly led Gilbert to believe that the time Gilbert had spent in federal detention (beginning on September 18, 2018) would be credited against his federal sentence. Wolf noted the error in Gilbert's sentencing memorandum. He also advised Gilbert of the error and Gilbert's right to withdraw from the Rule 11 plea agreement.
Wolf reminded the court of the error at the sentencing hearing, on October 1, 2019, telling the court that "quite frankly, I feel that I didn't do an adequate job in advising my client in terms of how time counts." He stated that Gilbert believed that had he remained in state custody, he would have been paroled in six to 12 months and returned to federal custody and been able to count the remaining months of detention towards his federal sentence. Wolf also stated that, had he realized that Gilbert would not receive federal credit, "it may have created some additional negotiating abilities on my part to have gotten rid of at least 39 months." On the other hand, Wolf acknowledged that he did not know what Gilbert's state sentence would have been had Gilbert returned to state custody. See United States v. Gilbert, 838 F. App'x 181, 183 (6th Cir. 2021) (direct appeal).
The district court offered Gilbert the opportunity to withdraw his plea but Gilbert decided to stick with it and continue with sentencing, id., because he and Wolf "agreed that it was not in [Gilbert's] best interest to withdraw his plea." The court sentenced Gilbert to 15 months on Count 1 and 24 months on Count 2, for a 39-month total. The court made Count 1 "concurrent to the undischarged term of imprisonment with the [MDOC]" and Count 2 "consecutive to Count 1 and all other terms of imprisonment." Gilbert's computation date began on October 1, 2019. The district court imposed a two-year term of supervised release on Count 1 and a one-year term on Count 2, served concurrently.2
Gilbert raised a single issue on direct appeal: he claimed that Wolf was ineffective because Wolf gave him bad advice regarding federal credit for the time served in federal detention. See Gilbert, 838 F. App'x at 182-84. We declined to address the issue because the record was not adequately developed to fairly evaluate either prong of Strickland v. Washington.3 Id. at 183-84. Specifically we stated that "the record contains only speculation as to whether Gilbert was prejudiced by his counsel's error," noting that "there [wa]s no evidence in the record of what the state parole board would have agreed to"; "no testimony about how Gilbert's trial counsel m[ight] have changed his strategy during plea negotiations had he been properly informed"; and that "the record g[ave] no indication of whether Gilbert would have agreed to postpone his jury trial as he did several times if he had known he was not receiving federal credit." Id. at 184.
On March 5, 2021, Gilbert was returned to state custody. On April 28, 2021, the MDOC released him from state custody and put him back on parole. Thus, Gilbert ended up serving a 34-month state sentence.
On March 12, 2021, Gilbert filed this § 2255 motion, arguing that Wolf was ineffective because he failed to (1) correct the district court's alleged misconception that the aggravated identity theft conviction must run consecutively to his undischarged state parole violation sentence; (2) seek relief under USSG § 5G1.3; and (3) accurately advise him that he would not receive federal credit for time spent in federal custody. In an amended motion, Gilbert asserted freestanding due process claims—that the district court violated his due process rights by imposing a consecutive sentence to his state parole term and by failing to apply USSG § 5G1.3. He also claimed that appellate counsel performed deficiently for not raising issues (1) and (2) as further proof of Wolf's ineffective assistance.
In a supporting affidavit, Wolf admitted (again) that he had given Gilbert erroneous advice regarding credit for time served on his sentences. Wolf explained that because of his incorrect understanding of the law he (1) did not expedite Gilbert's guilty plea and sentence; (2) did not seek a downward adjustment under USSG § 5G1.3; and (3) did not object at sentencing when the court ruled that the aggravated identity theft sentence had to run consecutive to all other undischarged sentences, including his undischarged state sentence.
The district court denied Gilbert's motion and granted a certificate of appealability.
Gilbert has now completed his term of imprisonment, so we must first consider whether his petition is moot because it no longer presents a case or controversy within the meaning of Article III, § 2 of the Constitution. Demis v. Sniezek, 558 F.3d 508, 512 (6th Cir. 2009). "If 'events occur during the pendency of a litigation which render the court unable to grant the requested relief,' the case becomes moot and thus falls outside our jurisdiction." Id. (quoting Abela v. Martin, 309 F.3d 338, 343 (6th Cir. 2002)). But "[e]ven when an appellant has been released from custody, his case is not moot so long as the appeal 'potentially implicates' the length of the appellant's supervised release term." United States v. Maken, 510 F.3d 654, 656 n.3 (6th Cir. 2007) (quoting United States v. Niss...
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