U.S. v. Faubion
| Decision Date | 22 April 1994 |
| Docket Number | No. 93-8508,93-8508 |
| Citation | 19 F.3d 226 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Mary Jean FAUBION, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Mary Jean Faubion, pro se.
Richard L. Durbin, Jr., Asst. U.S. Atty. and James H. DeAltey, Act. U.S. Atty., San Antonio, TX, for the U.S.
Appeal from the United States District Court For the Western District of Texas.
Before WISDOM, KING, and GARWOOD, Circuit Judges.
The defendant/appellant in this case, Mary Jean Faubion, assigns two points of error to the district court's denial of her section 2255 motion. 1 First, she contends that the court erred when it rejected her claim of ineffective assistance of counsel. Second, she complains of the court's ruling that a challenge to an upward departure under the sentencing guidelines is not cognizable in a Sec. 2255 proceeding. Neither constitutes reversible error; we therefore affirm.
Faubion was convicted of armed bank robbery. On February 27, 1989, she robbed the Savings of America Bank in San Antonio. In the course of taking the money, she admonished the teller with whom she was dealing not to press any alarm buttons. To emphasize her point, Faubion pulled out a black pistol, pointed it at the teller, and instructed, "Just give me all your money, now." The teller did as she was told. Faubion escaped with $1,418.00.
Faubion was arrested several months later in Ogden, Utah. She was apprehended in connection with an unrelated shoplifting investigation of her husband. When confronted by the authorities, she lied about her true identity and, further, disclaimed any knowledge of the bank robbery in San Antonio. After the authorities discovered who she was, they arrested her. Subsequently, she was indicted and convicted on one count of bank robbery in violation of 18 U.S.C. Sec. 2113(d).
The pre-sentence report ("PSR") classified Faubion as a career offender under U.S.S.G. Sec. 4B1.1, giving her a total offense level of 34. When that level was combined with her criminal history category of VI, it yielded a sentencing range of 262 to 327 months. Faubion objected to the career offender classification, however, on the basis that some of her past convictions did not fit the career offender criteria. A lengthy discussion ensued among the government, the defense, and the sentencing judge. Ultimately, but reluctantly, the sentencing judge ruled that a career offender classification in this case was inappropriate. Accordingly, he reduced her total offense level to 24 with a corresponding range of 77 to 96 months.
The district judge warned Faubion that he nonetheless was considering an upward departure in the light of the seriousness of the offense and the defendant's extensive criminal history. Again he entertained objections from Faubion's counsel and responses from the government. This time, the sentencing judge rejected the defense's plea that an upward departure was unnecessary and inappropriate. Consequently, he sentenced her to 120 months imprisonment, followed by five years supervised release and restitution to the bank of $1,418.00.
On June 23, 1992, Faubion filed a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. Sec. 2255 on the bases that, first, she received ineffective assistance of counsel and, second, the sentencing judge erred when he departed upward. The judge to whom this case was assigned recommended that Faubion's Sec. 2255 motion be denied. The district judge adopted his recommendations and entered judgment.
On appeal, Faubion reiterates the same arguments for vacating her sentence as she pressed in the district court. The focal point of her motion is that her attorney provided ineffective assistance when he advised her to go to trial in the light of the overwhelming evidence against her. She complains that it was ineffective assistance not to counsel her to plead guilty because, she argues, she would have received a two-level reduction at sentencing for "acceptance of responsibility".
Overshadowed by that unusual charge are two other allegations that she received ineffective assistance of counsel. First, she contends that her attorney failed to investigate her competency to stand trial. Second, she complains that her attorney failed to appeal errors in the sentencing.
In challenges to district court decisions under 28 U.S.C. Sec. 2255, we measure findings of fact against the clearly erroneous standard and questions of law de novo. 2 The district court's conclusions regarding Faubion's claims that she received ineffective assistance of counsel are mixed questions of law and fact and, thus, also subject to de novo review. 3 Subject to those standards, we turn to Faubion's assigned points of error.
A claim that counsel's performance fell below the threshold for effective assistance is analyzed under the framework that the Supreme Court established in Strickland v. Washington 4. To carry her burden, Faubion must show that (1) her attorney's performance was deficient and (2) this deficient performance prejudiced her defense. 5 To satisfy the first prong, the petitioner must show that the alleged errors of her counsel were so serious as to render the assistance she received below the constitutional minimum guaranteed by the Sixth Amendment. 6 That constitutional minimum is measured against an objective standard of reasonableness. 7
As to the second prong, the petitioner must demonstrate that her counsel's deficient performance so prejudiced her defense that the proceeding was fundamentally unfair. 8 This test is the linchpin and requires a showing that, but for counsel's errors, the result would have been different. 9 It is within this framework that we examine Faubion's allegations of deficient, prejudicial performance by her counsel.
1. Advice to Go to Trial. Faubion contends that her counsel's performance was deficient because he recommended going to trial instead of pleading guilty. She charges that, "[g]iven the overwhelming evidence against me, no reasonable person would have taken the case to trial." This argument is unusual, to say the least. Usually a prisoner challenges an attorney's advice to plead guilty. With excellent hindsight, prisoners often contend that, had they gone to trial, they would have presented a stellar defense and, ultimately, received an acquittal. 10 The originality of Faubion's claim outpaces its merit, however. Her claim fails the second prong of the Strickland test: She has failed to demonstrate how she was harmed by going to trial instead of pleading guilty. 11
It is important to focus Faubion's argument. She does not challenge the district court's refusal to grant her a two-point reduction for acceptance of responsibility. Rather, she argues that his failure to recommend a plea of guilty in an effort to secure this reduction constitutes ineffective assistance of counsel.
Courts are deferential to attorneys in examining the exercise of reasonable professional judgment. 12 Our focus is not what the sentencing judge might have done, had she pleaded guilty. We determine only whether the attorney's performance was objectively reasonable as required by the Sixth Amendment and whether the petitioner has proved prejudice.
Faubion's logic is flawed for several reasons. Counsel's decision to force the government to prove the charges brought against his client, particularly when the alternative offered no discernible advantage, was well within the bounds of adequate assistance. Faubion's counsel sat at the plea bargain table alone; the government offered no deal. Hence, in her attorney's considered judgment she had nothing to lose--and possibly something to gain--by proceeding to trial.
Faubion argues that the potential reduction for acceptance of responsibility was impetus enough to plead guilty. 13 The dispositive flaw here is that she can demonstrate no probability that she would have received that adjustment. Faubion reads a cause-and-effect relationship between pleading guilty and receiving the two-point reduction for acceptance of responsibility. The guidelines, however, expressly reject that position. The commentary to section 3E1.1 specifically states that while "[e]ntry of a plea of guilty prior to the commencement of trial ... will constitute significant evidence of acceptance of responsibility" a "defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right." 14
Significantly, her counsel's advice to proceed to trial did not vitiate her entitlement to the acceptance of responsibility adjustment. The guidelines expressly state that one who is convicted after a trial may still be entitled to the reduction. 15 What plainly foreclosed her entitlement to the reduction were her pre-trial statements and conduct reflecting no remorse or acceptance of responsibility for her crime.
In fact, at every stage, Faubion's pre-trial and pre-arrest conduct demonstrated the opposite of acceptance of responsibility. Faubion was a fugitive for several months while law enforcement agencies worked to apprehend her. She fled San Antonio and travelled all the way to Ogden, Utah, before she could be caught. When confronted by the security personnel at the store where her husband was detained for shoplifting, she denied her true identity. Upon arrest, she denied knowledge of the bank robbery. This conduct is diametrically inconsistent with any acceptance of responsibility. 16
This was not lost on the sentencing judge. Far from leading to a reduction for acceptance of responsibility, Faubion's pre-trial and pre-arrest conduct persuaded the judge to give her a sentence enhancement for obstruction of justice under U.S.S.G. Sec. 3C1.1. The commentary to section 3E1.1 states that, when a convict is penalized for obstructing justice, it "ordinarily indicates that the defendant has not...
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