Edward Dell v. United States
710 F.3d 1267
| 11th Cir. | 2013Background
- Dell challenging district court’s denial of his §2255 motion claiming appellate counsel erred in not raising a Kimbrough-based downward variance.
- Dell was convicted in 2007 for conspiracy to distribute crack cocaine and related offenses; sentenced to 235 months within a 235–293 month guideline range.
- Co-defendants Jenkins and Jones were later resentenced post-Kimbrough, with substantial reductions; Dell’s counsel did not raise Kimbrough at Dell’s sentencing.
- Kimbrough clarified that crack/powder disparity is advisory and allowed downward variance; Williams law in the circuit had treated disparity as mandatory before Kimbrough.
- After amendments 750 and 759, and Fair Sentencing Act, the district court sua sponte reduced Dell’s sentence to 188 months and later to 168 months via §3582(c)(2).
- The panel expanded the COA to include appellate-counsel ineffectiveness; majority denied relief; concurrence urged more sympathetic consideration of prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel’s failure to raise Kimbrough was prejudicial | Dell | Dell’s appellate counsel should have pressed Kimbrough to obtain relief | No prejudice; no plain error shown on direct appeal |
| Whether trial counsel was ineffective for not requesting a crack/powder disparity variance at sentencing | Dell | Counsel should have argued downward variance based on disparity | Not ineffective; counsel reasonably concluded issue unsettled and did not breach standard |
| Whether the COA should be expanded to include appellate-counsel ineffectiveness | Dell | Expansion appropriate due to record and subsequent law | COA expanded for appellate-counsel ineffectiveness; merits addressed |
| Whether plain-error framework applies to post-Kimbrough issues for prejudicial error | Dell | Plain error could render relief when intervening Supreme Court decisions alter law | Reuters: plain-error standard applied; no outcome-changing error shown for direct appeal |
Key Cases Cited
- Kimbrough v. United States, 552 U.S. 85 (Supreme Court 2007) (held district courts may vary downward based on crack/powder disparity; disparity not effectively mandatory)
- Williams v. United States, 456 F.3d 1353 (11th Cir. 2006) (crack/powder disparity treated as mandatory under pre-Kimbrough circuit law)
- United States v. Doe, 661 F.3d 550 (11th Cir. 2011) (plain-error review applicable to intervening Supreme Court decisions)
- United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005) (plain-error analysis on Olano prongs; test for prejudice in plain-error review)
- United States v. Ronda, 455 F.3d 1273 (11th Cir. 2007) (clear discussion of Olano third prong and need for contemporaneous indications of variance)
- United States v. Fields, 408 F.3d 1356 (11th Cir. 2005) (downward variance weight cannot be assumed from sentence at bottom of range)
- Underwood v. United States, 446 F.3d 1340 (11th Cir. 2006) (Booker error analysis; post-Mandatory Guidelines context for plain-error review)
- United States v. York, 428 F.3d 1325 (11th Cir. 2005) (booker-era plain-error analysis in sentencing)