United States v. Reed

• Decision Date: 07 July 2022
• Docket Number: 21-2073
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Jason REED, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

39 F.4th 1285

UNITED STATES of America, Plaintiff - Appellee,

v.Jason REED, Defendant - Appellant.

No. 21-2073

United States Court of Appeals, Tenth Circuit.

FILED July 7, 2022

Todd B. Hotchkiss, Albuquerque, New Mexico, for Defendant-Appellant.

Emil J. Kiehne, Assistant United States Attorney (Fred J. Federici, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before TYMKOVICH, Chief Judge, BALDOCK, and ROSSMAN, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Jason Reed pleaded guilty to being a felon in possession of a firearm. At sentencing, the district court concluded Defendant's previous convictions for drug distribution qualified him for enhanced criminal penalties under the Armed Career Criminal Act (ACCA). That statute mandates a 15-year minimum sentence for unlawful firearm possession when the offender has three or more previous convictions for serious drug offenses "committed on occasions different from one another." 18 U.S.C. § 924(e)(1). The district court applied the ACCA enhancement and sentenced Defendant to 15 years’ imprisonment—the mandatory minimum. Defendant makes three challenges on appeal. First, he claims his guilty plea was unknowing or involuntary because his counsel erroneously advised him that the ACCA was unlikely to apply. Second, he argues the district court lacked the power to decide whether his prior federal drug-trafficking convictions qualified as ACCA predicate felonies. Third, he alleges he was given insufficient notice that the ACCA might apply to him. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

I.

Defendant was previously convicted of several felonies. In 2004, he was convicted in federal court of four felonies: three counts of distributing a mixture containing cocaine base and one count of disposing a firearm to a convicted felon. Even though the four convictions were contained in a single judgment, each conviction was—according to the judgment—concluded on a different date. A year later, Defendant was convicted in state court of trafficking cocaine.

The present appeal arises out of Defendant's more recent criminal activity. In September 2017, Defendant knowingly brought a handgun and several rounds of ammunition to an apartment in Farmington, New Mexico. A grand jury indicted Defendant for being a felon in possession of a firearm and ammunition. 18 U.S.C. § 922(g)(1). Initially, Defendant wanted to go to trial. But it soon became apparent that he was unlikely to obtain an acquittal: a laboratory found Defendant's DNA on the handgun and Defendant's initial trial counsel (referred to throughout as "trial counsel") was unable to locate any witness to support Defendant's version of events.

The Government offered Defendant a plea agreement. Among other things, the agreement stated that the maximum prison sentence Defendant could receive was 10 years, unless the district court determined he was an armed career criminal under the ACCA, in which case his minimum prison sentence would be 15 years and his maximum sentence would be life. The agreement also informed Defendant that "regardless of any of the parties’ recommendations, the Defendant's final sentence is solely within the discretion of the Court." Trial counsel advised Defendant about whether he should accept the Government's plea agreement. Given Defendant's prior convictions, trial counsel worried Defendant might qualify for a sentencing enhancement under the ACCA, and he discussed that issue with Defendant. But trial counsel's advice was flawed. As discussed in further detail below, trial counsel mistakenly believed Defendant did not have the requisite number of felonies for an ACCA enhancement, and trial counsel advised Defendant based on this erroneous belief. Trial counsel, however, was careful not to promise Defendant that the ACCA would not apply. Defendant entered the plea agreement.

At his change-of-plea hearing, Defendant was once again reminded of the possibility of an ACCA enhancement and the consequences associated with pleading guilty. Echoing the plea agreement, the prosecutor reminded Defendant that he faced a maximum of 10 years’ imprisonment unless the district court determined that he was an armed career criminal, in which case he would face a mandatory minimum term of 15 years’ imprisonment and a maximum sentence of life imprisonment. Defendant acknowledged that he understood the charge and the maximum penalties that go along with it. He also acknowledged that, in the event he received a sentence he did not expect, he would be unable to withdraw his guilty plea. Additionally, Defendant agreed that the factual basis of his offense, as set forth in the plea agreement, was true and accurate, and that he was pleading guilty because he was in fact guilty. He also indicated that no one had made any promises (other than those in the plea agreement) to encourage him to plead guilty. Defendant then pleaded guilty.

The United States Probation Office issued Defendant's Presentence Investigation Report (PSR) on November 26, 2019. Based on Defendant's previous convictions—specifically, Defendant's three federal drug-trafficking convictions—the PSR concluded Defendant was subject to an enhanced sentence under the ACCA. See 18 U.S.C. § 924(e)(1) (imposing a 15-year mandatory minimum sentence when an 18 U.S.C. § 922(g) defendant has three previous convictions for serious drug offenses committed on "occasions different from one another"). Because the PSR's ACCA finding directly contradicted trial counsel's advice, Defendant obtained new counsel and moved to withdraw his guilty plea. He argued that his guilty plea was unknowing or involuntary because trial counsel's erroneous advice constituted ineffective assistance of counsel.

The district court held an evidentiary hearing on the motion. Trial counsel testified at the hearing, explaining how he reached the conclusion that Defendant was unlikely to receive an ACCA enhancement. According to his testimony, trial counsel reviewed Defendant's prior federal and state judgments and estimated that, at most, Defendant had two ACCA predicate felonies: one for the state drug distribution conviction and one for the three federal drug distribution convictions contained in a single judgment. Trial counsel's error was rooted in the erroneous belief that convictions contained in a single judgment qualify as one predicate felony for ACCA purposes. See United States v. Green , 967 F.2d 459, 460–61 (10th Cir. 1992) (holding an ACCA enhancement is proper even if the three prior convictions were the result of a single judicial proceeding). Explaining how he reached this conclusion, trial counsel testified:

After looking at [Defendant]’s discovery, the drug convictions alleged in it, and with what knowledge I had of Tenth Circuit case law at the time, I thought that this document, this judgment, would count as one conviction, even though it alleged more than one crime for a drug offense. And I was partly informed, in my reaching that decision, by State law, there's a State case called State v. Linam, which deals with habitual offender applications and enhancement of sentence. It's an old New Mexico Supreme Court case from the 1980s. And it provided that in order for somebody to be enhanced as an habitual offender, they needed to commit a crime and be convicted, commit a crime and be convicted, and commit a crime and then be convicted, in order for the habitual to be applied.

In advising Defendant about the plea agreement, trial counsel anticipated Defendant was unlikely to receive an ACCA enhancement, but he never promised Defendant that he would be ineligible for such an enhancement. Defendant also testified at the evidentiary hearing. He testified that trial counsel informed him that he did not believe Defendant would be considered an armed career criminal. According to Defendant, trial counsel told him that the ACCA language contained in the plea agreement was form language that he did not need to worry about. Defendant testified that he relied on trial counsel's opinion in deciding to accept the plea agreement and claimed that he would have gone to trial but for counsel's erroneous advice that the ACCA would not apply.

The district court denied Defendant's motion to withdraw his guilty plea. Applying Strickland v. Washington ’s two-part test for ineffective assistance of counsel, the district court held (1) trial counsel's performance was not constitutionally ineffective and (2) Defendant failed to demonstrate he suffered prejudice as a result of the allegedly ineffective assistance of counsel. The district court, therefore, rejected Defendant's claim that trial counsel's performance rendered his guilty plea unknowing or involuntary.

After the resolution of Defendant's motion, Defendant filed objections to the PSR. He argued that the district court lacked authority to find his prior convictions were serious drug offenses "committed on occasions different from one another," 18 U.S.C. § 924(e)(1), because facts that increase the mandatory minimum sentence must be submitted to the jury and found beyond a reasonable doubt. Alleyne v. United States , 570 U.S. 99, 108, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). The district court overruled Defendant's objections and imposed ACCA's mandatory minimum sentence.

II.

Defendant's first claim on appeal is the district court reversibly erred by concluding his guilty plea was knowing and voluntary despite trial counsel's erroneous advice about the ACCA's application. Defendant argues his trial counsel's advice "was not within the range of competence demanded of attorneys in criminal cases," rendering his subsequent decision to plead guilty unknowing or involuntary. United States v. Carr , 80 F.3d 413, 416 (10th Cir. 1996) (citing Hill v. Lockhart , 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ; McMann v. Richardson , 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (...