U.S. v. Gordon

• Decision Date: 22 September 1998
• Docket Number: Docket No. 97-2397
• Citation: 156 F.3d 376
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Gerald GORDON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 376

156 F.3d 376

UNITED STATES of America, Plaintiff-Appellant, v. Gerald GORDON, Defendant-Appellee.

Docket No. 97-2397.

United States Court of Appeals, Second Circuit.

Argued April 1, 1998.

Decided Sept. 22, 1998.

Richard A. Resnick, Assistant United States Attorney, Rochester, NY (Patrick H NeMoyer, United States Attorney, Western District of New York, Rochester, NY, of counsel), for Plaintiff-Appellant.

Peter J. Pullano, Rochester, NY (Law Office of Peter J. Pullano, Rochester, NY, of counsel), for Defendant-Appellee.

BEFORE: McLAUGHLIN and PARKER, Circuit Judges, and EGINTON ^*, District Judge.

PER CURIAM.

The United States appeals from a judgment of the United States District Court for the Western District of New York (Michael A. Telesca, Senior Judge) entered May 20, 1997 granting Gerald Gordon's ("Gordon") motion pursuant 28 U.S.C. § 2255 to vacate his convictions and for a new trial based upon ineffective assistance of counsel. We affirm for the reasons set forth below.

I. FACTS

A. Background

On October 25, 1995, Gordon, a convicted felon, was indicted on six counts of aiding and abetting false statements made by an accomplice to two licensed firearms dealers, in violation of 18 U.S.C. §§ 922(a)(6) & 924(a)(2), and six counts of receipt or possession of firearms by a convicted felon, in violation of 18 U.S.C. § 924(g)(1).

Before trial, the parties apparently discussed the possibility of Gordon entering a guilty plea. In connection with these discussions, on April 17, 1996, Gordon's counsel, William Dedes ("Dedes"), wrote a letter to Gordon concerning his potential sentencing exposure, which concluded: "I believe a conviction or convictions under this Indictment would result in a sentence of incarceration of 120 months." Dedes also stated: "If you were to plead guilty to one count in the indictment, ... [i]t would appear that the plea offer would reduce your exposure down to 92 through 115 months." The government, however, provided neither a written plea offer nor a draft plea agreement to Gordon.

On May 17, 1996, at a pretrial conference attended by both Gordon and the government, Dedes informed the district court that the plea offer would expose Gordon to "a sentence of eighty-four months." Further, Dedes stated that he had discussed the plea offer with Gordon but that Gordon would not accept it and asserted his innocence on all counts. After Gordon waived his right to a trial by jury, the district court held a bench trial, and it found Gordon guilty on all twelve counts.

The Probation Department then prepared a Pre-Sentence Report ("PSR") which concluded that "[b]ased on a total offense level of 34 and a criminal history category of VI, the guideline range for imprisonment is 262 to 327 months." Upon seeing the PSR, Dedes notified the district court that he had mistakenly advised Gordon that his maximum sentencing exposure upon a conviction would be only 120 months' imprisonment. Based on this error, Dedes asked to be relieved as counsel. The district court granted this request and appointed new counsel.

On February 14, 1997, Gordon, through new counsel, moved for downward departure under U.S.S.G. § 5K1.1 based on Dedes' ineffective assistance during plea negotiations. ¹ In an affidavit in support of this motion, Gordon stated: "Had I been told prior to trial that ... the maximum sentence after conviction after trial could be 12 to 17 years greater than the statutory maximum for a single offense, I would have accepted the plea offer."

On April 28, 1997, the district court held a sentencing hearing at which the downward departure motion was discussed. Gordon testified at this hearing that at the time of the plea negotiations "all I knew was a hundred and twenty months if I was to lose at trial, and eighty-four months was the offer that [the government] gave me." Dedes also testified at the sentencing hearing, stating: "Judge, my understanding is we were all proceeding on the assumption it was ten year maximum ... in open Court ... in chambers, and at no time was my interpretation of the guidelines ever challenged." Dedes also testified that the government's plea offer to Gordon included a sentence of only seven years' imprisonment.

The government responded to this testimony by stating that its "offer to Mr. Dedes was that [the government] ... would recommend the low end of the guidelines. There was some calculation on the guidelines quickly just looking at the book without formally sitting down, and it came out to about eighty-four months which is about seven and a half years." The government claimed that the eighty-four month calculation was the product of underestimating the criminal history category and other relevant enhancements included by the Probation Department in preparing the PSR.

At the conclusion of the hearing, the district court denied Gordon's motion for a downward departure and sentenced Gordon to 210 months' imprisonment. This sentence represented the low-end of a Guidelines range of 210 to 262 months' imprisonment which was based on a total offense level of 32 and a criminal history category of VI.

B. Proceedings Below

Immediately following sentencing, Gordon filed a motion pursuant to 28 U.S.C. § 2255 to vacate his convictions and for a new trial on the basis that his Sixth Amendment right to the effective assistance of counsel had been violated. On May 16, 1997, the district court held a hearing on Gordon's § 2255 motion. Apparently, Gordon made substantially the same arguments that he had made at the sentencing hearing.

The district court granted Gordon's motion in a decision and order entered May 20, 1997, holding that Gordon had satisfied the two-prong standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), required to establish ineffective assistance of counsel. The district court found that Dedes had provided ineffective assistance in failing to properly advise Gordon of his potential sentencing exposure. The district court also found that but for Dedes' inaccurate advice, Gordon would have entered into a plea agreement, and that, therefore, Dedes inaccurate advice substantially affected the outcome of the proceedings. The district court denied the Government's subsequent request for reconsideration.

II. DISCUSSION

A. Jurisdiction

As an initial matter, Gordon contends that this Court lacks jurisdiction to hear this appeal because the order of the district court was not a final judgment and, therefore, not appealable. In making this argument, Gordon relies primarily on Andrews v. United States, 373 U.S. 334, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963), in which the Supreme Court held that an order granting resentencing pursuant to § 2255 is not final and therefore not appealable.

"Normally, an appeal may be taken by the Government from a final ruling in proceedings under section 2255." United States v. Hundley, 858 F.2d 58, 60 (2d Cir.1988); see 28 U.S.C. § 1291. The Supreme Court, however, has held that finality in a habeas proceeding "requires that the judgment to be appealable should be final not only as to all the parties, but as to the whole subject-matter and as to all causes of action involved." Collins v. Miller, 252 U.S. 364, 370, 40 S.Ct. 347, 64 L.Ed. 616 (1920).

However, there are several circuit-level cases that have held that an order granting a new trial under § 2255 is final and therefore appealable. See, e.g., United States v. Allen, 613 F.2d 1248 (3d Cir.1980); see also United States v. Blackwell, 127 F.3d 947 (10th Cir.1997); United States v. Dunham Concrete Prods. Inc., 501 F.2d 80 (5th Cir.1974). In Allen, the Third Circuit based its holding on two primary considerations. First, the Third Circuit relied on the statutory language of § 2255, particularly paragraphs 3 and 6, ² which provide, respectively, that a district court may enter certain specific orders granting relief and that such orders are appealable. 613 F.2d at 1250. Second, the Third Circuit noted that a habeas proceeding could be final even if the underlying criminal proceeding was altered because of the separate, civil nature of the § 2255 petition. Id. at 1251.

Based on these considerations, the Third Circuit distinguished Andrews: "The crucial question in these cases [such as Andrews ] in determining finality is whether the district court has entered one of the orders specified in paragraph 3 of § 2255." Id. at 1250. The court reasoned that in Andrews "[a]lthough the court decided to grant the motion, it did not enter an order resentencing the defendant.... Thus the crux in Andrews was whether the § 2255 court actually entered the specific order requested." Id. at 1250-51.

We find the Third Circuit's reasoning in Allen persuasive and hereby adopt it. Accordingly, we hold that an order granting a new trial to a criminal defendant under § 2255 constitutes a final judgment and that we therefore have jurisdiction to hear the government's appeal. ³

B. Merits of the Government's Appeal

The government argues that the district court erred in granting Gordon's § 2255 motion because (1) Dedes' conduct did not fall short of constitutionally required legal assistance and (2) Gordon failed to show any prejudice therefrom. The government also argues that the district court abused its discretion in granting Gordon a new trial. We review the district court's findings of fact under a clearly erroneous standard, see Fed.R.Civ.P. 52(a); Zovluck v. United States, 448 F.2d 339, 341 (2d Cir.1971), and its application of the law de novo. See United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 710 (2d Cir.1960).

A criminal defendant must satisfy a two prong test in order to show ineffective assistance of counsel: (1) that counsel's representation fell below an objective standard of reasonableness measured by the prevailing professional norms; and (2) that there is a reasonable probability that, but for counsel's unprofessional...