United States v. Hubbard
2011 U.S. App. LEXIS 8003
| 8th Cir. | 2011Background
- Hubbard, a felon, was found in his apartment with a firearm, a digital scale, and marijuana during a Minneapolis police search.
- Hubbard admitted on four occasions that he owned the gun, including after his son’s arrest release.
- A grand jury indicted Hubbard for being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1), 924(a)(2).
- At trial, Hubbard was informed of his right to testify; his counsel did not call him to testify, and Hubbard did not object.
- After a conviction, Hubbard moved pro se for relief, leading to a new counsel and an evidentiary hearing on ineffective assistance.
- At sentencing, the court declined a § 2K2.1(b)(6) enhancement, calculated an offense level of 24, and sentenced Hubbard to 96 months within the 77–96 month range.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there ineffective assistance of counsel? | Hubbard contends counsel told him he could not testify, impairing his defense. | Hubbard’s statements lack credibility; court properly assessed conduct and Hubbard waived his right to testify. | No, record supports trial counsel’s effectiveness; no prejudicial deficient performance. |
| Was Hubbard's sentence substantively reasonable? | The court erred by considering criminal history after applying the Guidelines range. | District court properly considered § 3553(a) factors, including history and characteristics, and imposed top-of-range sentence. | Yes; sentence within range and supported by individual12 assessment; not procedurally or substantively unreasonable. |
Key Cases Cited
- Berkovitz v. Minnesota, 505 F.3d 827 (8th Cir. 2007) (defendant knowingly waives right to testify by remaining silent after counsel rests)
- United States v. Bolden, 596 F.3d 976 (8th Cir. 2010) (review of ineffective assistance on appeal; credibility of witnesses at post-trial hearing)
- United States v. Villalpando, 259 F.3d 934 (8th Cir. 2001) (record may be developed at post-trial hearings to assess ineffectiveness)
- United States v. Williams, 562 F.3d 938 (8th Cir. 2009) (sufficiency of record for ineffective-assistance claims with post-trial testimony)
- United States v. Williams, 897 F.2d 1430 (8th Cir. 1990) (prior decision on post-trial evidence and witness contact)
- Gall v. United States, 552 U.S. 38 (2007) (establishes standard for reviewing sentences within/outside Guidelines)
- United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) (abuse-of-discretion standard for substantive reasonableness of sentence)
- United States v. O'Connor, 567 F.3d 395 (8th Cir. 2009) (procedural and substantive review of sentences under Gall framework)
- United States v. Ramirez-Hernandez, 449 F.3d 824 (8th Cir. 2006) (ineffective assistance standards in context of appellate review)