U.S. v. Horne

• Decision Date: 19 March 1993
• Docket Number: No. 90-3175,90-3175
• Citation: 300 U.S.App.D.C. 169,987 F.2d 833
• Parties: UNITED STATES of America v. Andre HORNE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 833

987 F.2d 833

300 U.S.App.D.C. 169

UNITED STATES of America v. Andre HORNE, Appellant.

No. 90-3175.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 10, 1992.

Decided March 19, 1993.

Appeal from the United States District Court for the District of Columbia (CR-89-00372-01).

Reita Pendry, Asst. Federal Public Defender, with whom A.J. Kramer, Federal Public Defender (both appointed by this court) was on the brief, for appellant.

Thomas R. Eldridge, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher and Elizabeth Trosman, Asst. U.S. Attys., were on the brief, for appellee.

Before BUCKLEY, WILLIAMS, and D.H. GINSBURG, Circuit Judges.

Opinion for the court filed by Circuit Judge D.H. GINSBURG.

Separate opinion for the court filed by Circuit Judge BUCKLEY.

Concurring opinion filed by Circuit Judge BUCKLEY.

D.H. GINSBURG, Circuit Judge:

Andre Horne appeals from the decision of the district court denying his presentence motion to withdraw his guilty plea because his lawyer substantially underestimated the sentence he would receive. We hold that the appellant was not deprived of effective assistance of counsel under the Sixth Amendment of the United States Constitution and that the district court did not abuse its discretion in denying his motion to withdraw his guilty plea. We therefore affirm the judgment of the district court.

I. BACKGROUND

Horne was indicted on three counts in October 1989. He was charged with possession with intent to distribute more than five grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B)(iii); possession of a firearm in connection with a drug trafficking offense, in violation of 18 U.S.C. § 924(c); and possession of a firearm by one previously convicted of a felony, in violation of 18 U.S.C. § 922(g).

Pursuant to an agreement with the prosecution, the appellant pled guilty to the first and third counts, and the second count would later be dismissed. Before accepting his plea, the district court, per FED.R.CRIM.P. 11, told Horne that he faced a maximum penalty of fifty years' imprisonment and a $2,010,000 fine. The judge also warned him that the range of sentences he could receive under the Sentencing Guidelines could not be determined prior to the preparation of the presentence report and that the court could "impose a sentence that could be more severe or less severe than the sentence called for by the guidelines." Horne twice affirmed that he had received no promise--other than the dismissal of the second count--to induce his guilty plea, and his counsel indicated that there had been "no specific sentence recommended at all by either side in this case."

At a status hearing in May, Horne's counsel moved to withdraw the plea, pursuant to FED.R.CRIM.P. 32(d), based upon a claim of ineffective assistance of counsel. It seems that prior to Horne's pleading guilty, his counsel had erroneously estimated that the applicable Sentencing Guidelines range for the first and third counts would be 63 to 78 months. This estimate was based upon counsel's impression--an impression shared by the prosecutor--that Horne had but one prior felony drug conviction and one prior misdemeanor drug conviction. Both the defense counsel and the prosecutor had surmised prior to receiving the presentence report that Horne's prior conviction for possession with intent to distribute marijuana was only a misdemeanor in the State of Maryland, as it would be in the District of Columbia; in fact, however, possession of marijuana with intent to distribute is a felony in Maryland. With two prior felony convictions, Horne was classified under the Guidelines as a "career criminal", see U.S.S.G. § 4B1.1, and was thus subject to a much higher sentencing range, viz. 262 to 327 months.

After a hearing the district court denied Horne's motion to withdraw his guilty plea. Noting that Horne neither asserted his innocence nor offered any defense going to the merits of the charges to which he had pled guilty, and that he had been informed of the maximum possible penalty provided by law, as required by Rule 11, the court held that the appellant could not withdraw his guilty plea.

II. ANALYSIS

Horne offers two grounds for reversal of the district court decision to deny his motion to withdraw his guilty plea: (1) that the mistaken advice of counsel constituted ineffective assistance of counsel under the Sixth Amendment, and (2) that the district court abused its discretion in denying his motion because the appellant's misapprehension of the consequence of the plea provides a "fair and just reason" for allowing him to withdraw it pursuant to Rule 32(d). We hold that because the appellant has failed to show that, but for counsel's errors, he would have pleaded not guilty and insisted upon going to trial, see Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985), he can not be said to have received ineffective assistance of counsel. We hold also that the district court did not abuse its discretion in barring a defendant who was accurately informed of his maximum exposure from withdrawing his plea in the face of admitted and still uncontested guilt.

A. Ineffective Assistance of Counsel

In Hill v. Lockhart, supra, the Supreme Court applied to the guilty plea context the two-part test for determining ineffective assistance counsel that it had previously announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hill, 474 U.S. at 58, 106 S.Ct. at 370; United States v. Loughery, 908 F.2d 1014, 1018 (D.C.Cir.1990). The Hill- Strickland test requires the defendant to show both that counsel's advice was not "within the range of competence demanded of attorneys in criminal cases," Hill, 474 U.S. at 56, 106 S.Ct. at 369 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970)), and that as a result he was prejudiced, i.e. "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59, 106 S.Ct. at 370.

Because Horne fails to satisfy the prejudice requirement, we do not need to address the question whether his plea was within the range of competence demanded of attorneys in criminal cases. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 ("there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one"). Admittedly, the prejudice part of the Hill- Strickland test may pose a difficulty in some cases because it is by no means obvious how a court is to determine the probability that a defendant would have gone to trial. It is clear enough that a defendant must make more than a bare allegation that he "would have pleaded differently and gone to trial," Key v. United States, 806 F.2d 133, 139 (7th Cir.1986); accord Gargano v. United States, 852 F.2d 886, 891 (7th Cir.1988), but it is not clear how much more is required of him. Nor are we called upon today to decide that question because Horne has never claimed that but for counsel's errors he would have pleaded not guilty and insisted upon going to trial.

Nothing in the present record suggests that Horne had (or even now has) any intention of pleading not guilty and going to trial. Horne was clearly apprised of the statutory maximum penalty. He also "confirmed that nobody had ... induced him into pleading guilty" and "that no one had predicted, prophesied or promised him a particular sentence." United States v. Smith, 915 F.2d 959, 964 (5th Cir.1990). The district court also warned Horne that it could impose a more severe sentence than the sentence called for by the Guidelines. Cf. Doganiere v. United States, 914 F.2d 165, 168 (9th Cir.1990) (defendant "suffered no prejudice from his attorney's prediction because, prior to accepting his guilty plea, the court explained that the discretion as to what the sentence would be remained entirely with the court"). Moreover, during the plea colloquy, Horne admitted possession of the guns and possession of the drugs with intent to distribute them, as charged, and he has never repudiated those sworn admissions nor claimed to have any defense to the charges to which he pled guilty. Thus Horne "does not maintain ... that he is innocent of the charges in the indictment, or that a plausible defense to those charges exist[s]." Czere v. Butler, 833 F.2d 59, 64 (5th Cir.1987) (quotation marks and citation omitted).

Horne has offered nothing to suggest that he would have succeeded if he had gone to trial, and indeed "the 'overwhelming' evidence suggests that appellant's decision to plead guilty was a rational choice." Lopez-Nieves v. United States, 917 F.2d 645, 650 (1st Cir.1990) (dictum). It is apparent, therefore, that Horne wants to withdraw his guilty plea solely in order to strike a better deal with the prosecutor. The constitutional requirement of effective assistance of counsel is intended, however, to guarantee a fair disposition of defendant's case, not to ensure that he is able to drive the hardest possible plea bargain with the Government. See Fields v. Attorney General of Md., 956 F.2d 1290, 1298 (4th Cir.1992). As the Seventh Circuit said in Gargano v. United States, supra, the defendant "does not suggest that he is not guilty. He only suggests that he should have had the opportunity to strike a harder bargain with the government. This is not enough to establish prejudice." 852 F.2d at 891. Accord United States v. Arvanitis, 902 F.2d 489, 495 (7th Cir.1990).

In a post-argument submission, Horne draws our attention to United States v. Day, 969 F.2d 39 (3d Cir.1992), in which the court found that the defendant was prejudiced by counsel's inaccurate estimate of his sentencing range under the Guidelines. In that...