United States v. Alfred Thompson, 406 U.S. App. D.C. 79

In June 2008 police arrested Alfred Thompson during a foot chase and recovered a bag with 53.6 g of crack and 4 g of marijuana.
Indicted July 2008 for possession with intent to distribute ≥50 g crack (21 U.S.C. § 841) and possession of marijuana; the crack count carried a 10-year mandatory minimum absent prior conviction.
Government filed a § 851 information six days before trial alleging a prior felony drug conviction, doubling the mandatory minimum to 20 years.
Thompson was tried in October 2009, convicted on all counts, and sentenced to the mandatory minimum in January 2010.
On appeal Thompson raised two ineffective-assistance claims: (1) counsel failed to convey plea offers that would have preserved the 10-year minimum; (2) counsel failed to obtain a continuance so he could be sentenced under the Fair Sentencing Act once enacted.
The panel follows D.C. Circuit precedent requiring remand when an ineffectiveness claim raised on direct appeal cannot be resolved on the existing record.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Counsel failed to convey plea offers that would have avoided the §851 enhancement	Thompson: counsel did not inform him of two plea offers (one in Apr 2009, one on eve of trial) that would have avoided the §851 filing and kept the 10-year minimum	Government: record insufficient to resolve; argues ineffectiveness claims generally belong on collateral review (but panel bound by precedent)	Remanded to district court for further proceedings (may include evidentiary hearing) because record does not permit resolution on appeal
Counsel failed to obtain a continuance so Thompson could be sentenced under the Fair Sentencing Act	Thompson: counsel should have filed a written continuance motion and made arguments that might have persuaded the court to wait for the Act to pass, yielding a lower mandatory minimum	Government: court properly denied continuance; client’s murder conviction timeline and lack of imminent legislative change made continuance unwarranted	Denied on the record — waiver/continuance argument meritless; district court within discretion to refuse an indefinite continuance

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance test: deficient performance and prejudice)
Missouri v. Frye, 132 S. Ct. 1399 (2012) (duty to communicate plea offers; prejudice requires reasonable probability the defendant would have accepted and court/prosecution would have allowed it)
United States v. Bell, 708 F.3d 223 (D.C. Cir.) (remand rule for colorable ineffective-assistance claims raised on direct appeal)
United States v. Rashad, 331 F.3d 908 (D.C. Cir.) (same)
Dorsey v. United States, 132 S. Ct. 2321 (2012) (Fair Sentencing Act applies to sentencing after its passage)
United States v. Fields, 699 F.3d 518 (D.C. Cir. 2012) (limits on retroactivity of the Fair Sentencing Act)
United States v. Moore, 703 F.3d 562 (D.C. Cir. 2012) (discussion of continuance and Fair Sentencing Act arguments)