64 F.4th 763
6th Cir.2023Background
- Gilbert, on state parole, was brought to federal court via a writ of habeas corpus ad prosequendum and pleaded guilty under a Rule 11(c)(1)(C) agreement to 18 U.S.C. § 1029(a)(4) (Count 1) and 18 U.S.C. § 1028A(a)(1) (Count 2); parties agreed to a 39–45 month guideline range with Count 2 at least 24 months and consecutive to Count 1.
- Defense counsel Barry Wolf initially told Gilbert pre-plea that his time in federal custody would count toward his federal sentence; Wolf later discovered that, because Gilbert was on loan from the state, that time would be credited to the state sentence and informed both Gilbert and the court before sentencing.
- The district court offered Gilbert the chance to withdraw his plea after being informed of the error; Gilbert declined and was sentenced to 15 months (Count 1, concurrent to undischarged state term) and 24 months (Count 2, consecutive to Count 1 and all other terms), computation beginning Oct. 1, 2019.
- Gilbert appealed; this court declined to resolve the Strickland claim on direct appeal because the record lacked evidence of prejudice and remand was necessary to develop the record.
- In a § 2255 motion Gilbert alleged ineffective assistance for: (1) erroneous advice about credit for time served during plea negotiations, (2) failing to object to the court’s ruling that § 1028A requires consecutive sentences to state terms and (3) not seeking a USSG § 5G1.3 downward adjustment; he also claimed appellate counsel was ineffective for not raising (2) and (3).
- The district court denied relief; this appeal considers mootness, Strickland deficiency and prejudice, statutory interpretation of § 1028A, and the applicability of USSG § 5G1.3.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel’s erroneous pre-plea advice about federal credit denied effective assistance | Gilbert: Wolf misadvised him that federal pretrial detention time would be credited to his federal sentence, affecting plea bargaining and timing | Government/Wolf: Wolf corrected the error before sentencing, the court offered withdrawal, and there is no evidence the plea outcome would have changed | Court: No Strickland prejudice; correction was timely and Gilbert offered no evidence a different plea or deal was likely |
| Whether § 1028A permits a district court to run aggravated-identity-theft sentences concurrent to undischarged state sentences | Gilbert: § 1028A should not bar district court discretion under § 3584(a) to impose concurrent sentences | Government: § 1028A’s plain text ("any other term of imprisonment") and precedent require consecutive sentences to all other terms, including state sentences | Court: § 1028A unambiguously requires consecutive sentences to "any other" imprisonment, including state sentences; district court correctly applied § 1028A |
| Whether counsel should have sought a USSG § 5G1.3 adjustment at sentencing | Gilbert: § 5G1.3(b)/(d) could justify a downward adjustment or concurrency consideration | Government: § 1028A’s mandatory consecutive requirement and the plea agreement’s 39-month floor preclude a meaningful § 5G1.3 remedy | Court: § 1028A controls and the plea agreement bound Gilbert to a 39-month minimum; § 5G1.3 could not defeat the statutory consecutive mandate or the agreed floor |
| Whether appellate counsel was ineffective for not raising the consecutive/§5G1.3 claims on direct appeal | Gilbert: Appellate counsel should have raised these issues | Government: The issues were meritless or foreclosed; raising them would have been futile | Court: Appellate counsel not deficient because arguments lacked merit and plea waiver and statute foreclose relief |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing deficient performance and prejudice framework for ineffective assistance)
- Lafler v. Cooper, 566 U.S. 156 (right to effective assistance during plea negotiations)
- Padilla v. Kentucky, 559 U.S. 356 (counsel must give correct advice on collateral consequences during plea bargaining)
- United States v. Gonzales, 520 U.S. 1 (statute saying a sentence "shall not run concurrently with any other term of imprisonment" includes state sentences)
- Dean v. United States, 581 U.S. 62 (discussing § 1028A and its relationship to § 924(c))
- Rodriguez-Penton v. United States, 905 F.3d 481 (prejudice may be shown by demonstrating a reasonable probability of a different plea outcome)
- Byrd v. Skipper, 940 F.3d 248 (counsel’s unreasonable failure to pursue plea negotiations can show prejudice)
- United States v. White, 874 F.3d 490 (holding a federal sentence does not run while a prisoner is on loan to federal authorities)
- United States v. Potts, 947 F.3d 357 (discussing § 5G1.3 application at sentencing; not authority for running § 1028A sentences concurrent to state terms)