UNITED STATES of America, Plaintiff-Appellee, v. James Thomas PHILLIPS, Defendant-Appellant.
No. 98-50062.
United States Court of Appeals, Fifth Circuit.
April 18, 2000.
210 F.3d 345
Joseph H. Gay, Jr., Asst. U.S. Atty., San Antonio, TX, Mark Howard Marshall, Asst. U.S. Atty., Austin, TX, for Plaintiff-Appellee.
James Thomas Phillips, Bastrop, TX, pro se.
Before REAVLEY, SMITH and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Federal prisoner James Thomas Phillips filed a motion under
While conducting an unrelated investigation, Austin police discovered a Chevrolet Suburban in a motel parking lot that was registered to Phillips, a federal fugitive, under an alias. Before the officers could arrest him, he left in a station wagon with Laurie McCravy, his common law wife, and her three children. The police followed, stopped the station wagon, and arrested Phillips and McCravy. Inside the station wagon, the police found a loaded firearm and a box containing approximately 1200 grams of methamphetamine.
Phillips was prosecuted and convicted by a jury of conspiracy to possess methamphetamine with intent to distribute, possession of methamphetamine with intent to distribute, and carrying a firearm during a drug related offense. See
We affirmed on direct appeal. See United States v. Phillips, 979 F.2d 210 (5th Cir. Dec. 10, 1992) (unpublished). We did not address the obstruction of justice enhancement because, although Phillips claims he asked his appellate counsel to do so, the enhancement was not challenged on appeal.
Phillips subsequently filed this
II
The district court determined that Phillips‘s trial counsel was not ineffective because the obstruction of justice enhancement was proper. We review this ruling de novo. See United States v. Faubion, 19 F.3d 226, 228 (5th Cir.1994).
A criminal defendant has a constitutional right to receive effective assistance of counsel on direct appeal. See Hughes v. Booker, 203 F.3d 894, 895 (5th Cir.2000). A claim of ineffective assistance based on the failure to argue an issue on appeal is governed by the familiar two-part Strickland test, which requires us to determine whether: (1) the attorney‘s performance was deficient, and (2) the deficiency prejudiced the defendant. See Roe v. Flores-Ortega, — U.S. —, 120 S.Ct. 1029, 1034, 145 L.Ed.2d 985 (2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692-93 (1984)); United States v. Williamson, 183 F.3d 458, 462 (5th Cir.1999).
A
Counsel is not deficient for not raising every non-frivolous issue on appeal. See Williamson, 183 F.3d at 462. Instead, to be deficient, the decision not to raise an issue must fall “below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-93. This reasonableness standard requires counsel “to research relevant facts and law, or make an informed decision that certain avenues will not prove fruitful. Solid, meritorious arguments based on directly controlling precedent should be discovered and brought to the court‘s attention.” Williamson, 183 F.3d at 462-63 (citations omitted). Thus, to determine whether Phillips‘s appellate counsel was deficient, we consider whether a challenge to the obstruction enhancement would have been sufficiently meritorious such that Phillips‘s counsel should have raised it on appeal.
The version of
If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.
The Presentence Report (“PSR“) in this case justified its recommendation of an enhancement under
The court generally “adopt[ed] ... as its finding the factual statements contained in the presentence report as to which there are no objections.” Rather than adopting the PSR‘s contested findings, however, the court made its own findings. As to the obstruction of justice enhancement, the court found that Phillips‘s statements to the arresting officers justified the enhancement without addressing the accusations of perjury.2
The application notes to
Phillips‘s statements to the arresting officer, read in a light most favorable to him, see id. appl. n. 1 (“In applying this provision, the defendant‘s testimony and statements should be evaluated in a light most favorable to the defendant.“), did not support the enhancement because they did not significantly obstruct the investigation, see Surasky, 976 F.2d at 245 (comparing notes 3(g) and 4(b) and “hold[ing] that a false statement made by a defendant to law enforcement officers cannot constitute obstruction of justice unless the statement obstructs or impedes the investigation at issue significantly“). Phillips‘s statements that he had poor memory and his denial of ownership of the Suburban did not even relate to the methamphetamine investigation. Cf.
The government argues that other obstructive conduct Phillips engaged in—namely his perjury and his encouragement of false testimony from another witness—made any appeal of the enhancement futile. Cf. Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir.1995) (“Counsel cannot be deficient for failing to press a frivolous point.“). As this other conduct was neither the grounds for the enhancement nor is clearly established in the record, and because the grounds the district court relied on are incorrect, we disagree that an appeal of the enhancement would have been futile. Instead we find, based on controlling case law, that Phillips had a clearly meritorious appellate issue regarding whether the enhancement was proper and that, accordingly, his appellate counsel was deficient for not raising this issue on appeal. Cf. Williamson, 183 F.3d at 462-63 & n. 7 (finding deficient performance when counsel did not cite “directly controlling precedent” which showed that a sentencing enhancement was improper); United States v. Kissick, 69 F.3d 1048, 1056 (10th Cir.1995) (“An attorney‘s failure to challenge the use of a prior conviction to classify the defendant as a career offender when that prior conviction is facially insufficient to satisfy the definition of a ‘controlled substance offense’ under
B
We next consider whether Phillips was prejudiced by his appellate counsel‘s deficiency. To show prejudice, Phillips must show that there is a “reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 697-98, quoted in Williamson, 183 F.3d at 463 (applying the standard to ineffective appellate counsel). “A reasonable probability is that which renders the proceeding unfair or unreliable, i.e., undermines confidence in the outcome.” Williamson, 183 F.3d at 463.
In the appellate context, the prejudice prong first requires a showing that we would have afforded relief on appeal. As we aptly noted in Williamson, this requires us to “counter-factually determine the probable outcome on appeal had counsel raised the argument.” Id. at
The fact that attorney error resulted in a longer sentence, however, does not always show prejudice. In Spriggs v. Collins, 993 F.2d 85 (5th Cir.1993), we stated that, to show that a sentencing error was prejudicial, a petitioner must show that there is “a reasonable probability that but for trial counsel‘s errors the defendant‘s non-capital sentence would have been significantly less harsh.” Id. at 88; see also United States v. Stewart, 207 F.3d 750, 751 (5th Cir.2000) (same). We premised this rule on the fact that many state sentencing schemes allow a broad sentence range without attaching specific differences in the range to particular enhancing factors. See Spriggs, 993 F.2d at 88. The significant prejudice rule reflected our concern that reversal without a showing that “the sentence would have been significantly less harsh” would lead to “an automatic rule of reversal.” Id. (“Arguably, when the discretionary sentencing range is great, practically any error committed by counsel could have resulted in a harsher sentence, even if only by a year or two.“).
We qualified this significant prejudice rule in dictum: “one foreseeable exception to this requirement would be when a deficiency by counsel resulted in a specific, demonstrable enhancement in sentencing—such as an automatic increase for a ‘career’ offender or an enhancement for use of a handgun during a felony—which would have not occurred but for counsel‘s error.”4 Id. at 88 n. 4. This exception applies here. The obstruction enhancement increased Phillips‘s offense level for the drug offenses from thirty-two to thirty-four, placing him in a sentencing range of between 151 to 188 months. Had the enhancement not been applied to him, his sentencing range would have been between 121 and 151 months, well below the 188 months he actually received for each offense. Thus, he received a sentence which was at least thirty-seven months longer than appropriate given the district court‘s findings. Because this demonstrable enhancement was ultimately solely attributable to counsel‘s failure to raise the issue on appeal, we hold that Phillips has shown prejudice. See id.; cf. United States v. Glover, 97 F.3d 1345, 1350 (10th Cir.1996)
We are not persuaded by the government‘s argument that Phillips‘s above-noted other conduct justified the enhancement, thus precluding him from showing prejudice because he is unable to show that “the proceeding [was] unfair or unreliable.” Williamson, 183 F.3d at 463.5 As to Phillips‘s alleged perjury, the government misleadingly suggests that the court also imposed the enhancement because it found that Phillips committed perjury at trial. In fact, the court implicitly rejected finding perjury,6 and the government has not identified any part of the record which shows this was improper. Cf. United States v. Gonzalez, 163 F.3d 255, 262-63 (5th Cir.1998) (noting that we review the court‘s perjury finding for clear error). As for Phillips‘s alleged encouragement of false testimony from McCravy‘s daughter, the record cites the government provides are inadequate to establish that he is plainly subject to the enhancement. Additionally, we decline to reach this issue now when the government did not raise it below.
III
In sum, we find that Phillips‘s appellate counsel was ineffective for not challenging
REAVLEY, Circuit Judge, dissenting:
I disagree with the majority on their reading of the sentencing judge‘s finding and upon their decision that the failure of counsel to object and argue the obstruction of justice enhancement prejudiced Phillips.
Phillips told the arresting officers that he did not know the drugs were in his car; and he testified at trial that he was proceeding to a lawyer‘s office to make arrangements to surrender on the outstanding fugitive warrant, that he had no role or responsibility for the presence of methamphetamine in the car, and that he planned to give the drugs and weapon to the lawyer as a show of “good faith.”
Unsurprisingly, the presentence report recommended adjustment for obstruction of justice for this reason:
This defendant provided untruthful testimony concerning material facts at his trial wherein he attempted to obstruct the administration of justice during the investigation and prosecution of the instant offense.
Defense counsel objected only to the finding that defendant provided untruthful testimony at his trial, because “[t]he probation officer was not present at trial. He has no way of judging the credibility of any of the witnesses.”
At the sentencing the court adopted the factual statements of the report and, as to the controverted issue, said:
The court finds the Defendant impeded and obstructed justice, having heard trial testimony and the presentation of physical evidence.
The court went on to speak of the false statements to the arresting officers, which has never been the complaint of this petitioner until his successful plea to this court of appeals. His principal argument to the trial court even in this habeas proceeding was the failure of the sentencing court to make specific findings relative to perjury.
This panel‘s discussion is irrelevant if the obstruction of justice enhancement was made due to “false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” See United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 1116, 122 L.Ed.2d 445 (1993).
It seems clear to me that the sentencing court did find that Phillips committed perjury and that the record supports that finding. If that finding is unclear, and if the judge failed to make the required findings, it is very certain that there was no prejudice to warrant our granting this writ for ineffectiveness of counsel. There is no likelihood of a different outcome on the resentencing, and the 1991 sentencing was neither unfair nor unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369-71, 113 S.Ct. 838, 843, 122 L.Ed.2d 180 (1993). I dissent.