UNITED STATES OF AMERICA, APPELLEE v. CARLOS AGUIAR, ALSO KNOWN AS LOS, APPELLANT
No. 15-3027
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 8, 2018 Decided July 3, 2018
Appeal from the United States District Court for the District of Columbia (No. 1:04-cr-00355-3)
Erica J. Hashimoto, appointed by the court, argued the cause for appellant. On the briefs were Steven H. Goldblatt, appointed by the court, Amit R. Vora, Supervisory Attorney, and Caleb Redmond and Joseph Flanagan, Student Counsel.
Carlos Aguiar, pro se, filed the brief for appellant.
James A. Ewing, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, and Elizabeth Trosman, T. Anthony Quinn, and Nicholas P. Coleman, Assistant U.S. Attorneys. Suzanne G. Curt, Assistant U.S. Attorney, entered an appearance.
Before: ROGERS, GRIFFITH, and SRINIVASAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge
Opinion, dissenting in part, filed by Circuit Judge GRIFFITH.
ROGERS, Circuit Judge: This is an appeal from the denial of a collateral attack pursuant to
I.
In superseding indictments, Aguiar and five co-defendants were charged with RICO and armed bank robbery conspiracies, two armed bank robberies, three counts of unlawful possession of a firearm by a convicted felon, and two counts of possession or use of a fully automatic assault weapon in connection with a crime of violence in violation of
Thereafter, on September 12, 2012, Aguiar, pro se, filed a motion pursuant to
II.
The protections afforded by the Sixth Amendment to the Constitution that “the accused shall enjoy the right to a . . . public trial” extend to voir dire. Presley v. Georgia, 558 U.S. 209, 213 (2010). Voir dire is “presumptively . . . a public process with exceptions only for good cause shown.” Press-Enterprise Co. v. Sup. Ct. of Cal., 464 U.S. 501, 505 (1984). Consequently, “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” Waller v. Georgia, 467 U.S. 39, 48 (1984); see CNN v. United States, 824 F.2d 1046, 1048 (D.C. Cir. 1987).
It is undisputed that the courtroom where voir dire was conducted for the trial of Aguiar and his co-defendants was closed, that defense counsel did not object, and that the district court did not conduct the Waller test. According to affidavits of
When, as here, a defendant first objects to a voir dire closure in a collateral attack on his conviction, the Supreme Court instructed in Weaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017), that, notwithstanding a structural error, see id. at 1908, “not every public-trial violation will in fact lead to a fundamentally unfair trial” or “always deprive[] the defendant of a reasonable probability of a different outcome,” id. at 1911.
[W]hen a defendant raises a public-trial violation via an ineffective-assistance-of-counsel claim, Strickland prejudice is not shown automatically. Instead, the burden is on the defendant to show either a reasonable probability of a different outcome in his or her case or, as the Court has assumed for these purposes, to show that the particular public-trial violation was so serious as to render his or her trial fundamentally unfair.
Id. (internal citation omitted). The Court rejected Weaver‘s challenge to the closure of voir dire because he had “offered no evidence or legal argument” that but for counsel‘s error there was a reasonable probability of a different outcome, or that his trial was rendered fundamentally unfair. Id. at 1912–13.
In circumstances strikingly similar to Aguiar‘s, Weaver‘s mother and her minister were excluded from the courtroom for two days during voir dire. Id. at 1913. “The closure was limited to the jury voir dire; the courtroom remained open during the evidentiary phase of the trial; the closure decision apparently was made by court officers rather than the judge; there were many members of the venire who did not become jurors but who did observe the proceedings; and there was a record made of the proceedings that does not indicate any basis for concern, other than the closure itself.” Id. Weaver made “no suggestion that any juror lied during voir dire; no suggestion of misbehavior by the prosecutor, judge, or any other party; and no suggestion that any of the participants failed to approach their duties with the neutrality and serious purpose that our system demands.” Id.
Assuming Aguiar‘s counsel‘s failure to object to the closure of voir dire constituted deficient performance under Strickland‘s first prong, Weaver is dispositive of Strickland‘s second prong. Aguiar proffered no evidence that had the district court conducted voir dire in open court, there was a reasonable probability the result of the proceeding would have been different, or that the voir dire proceedings were fundamentally unfair. He, like Weaver, suggests no misconduct by any party. The closed proceedings were held on the record, in the presence of all parties and their counsel, and Aguiar points to nothing in the closed proceedings that would remove his challenge from the reach of Weaver. The evidentiary and sentencing
III.
The Sixth Amendment right to the effective assistance of counsel extends to the “critical stage” of plea bargaining. Lafler v. Cooper, 566 U.S. 156, 162–63, 165 (2012). Constitutionally adequate representation requires counsel to adhere to “prevailing professional norms” and thereby “play[] a role that is critical to the ability of the adversarial system to produce just results.” Strickland, 466 U.S. at 685, 688. The Supreme Court concluded “the proper standard for attorney performance is that of reasonably effective assistance,” id. at 687, with the consequence that counsel‘s representation is constitutionally deficient if it falls “below an objective standard of reasonableness,” Hill v. Lockhart, 474 U.S. 52, 57 (1985); Strickland, 466 U.S. at 687-88. Reasonably effective assistance requires that counsel be more than a mere bystander and avoid making “errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
The duty to provide reasonably effective representation at sentencing presumes knowledge of statutory penalties and familiarity with the U.S. Sentencing Guidelines. See Abney, 812 F.3d at 1089; United States v. Gaviria, 116 F.3d 1498, 1512 (D.C. Cir. 1997). Representation is deficient when counsel fails to protect his client‘s interests in accord with the prevailing norms for criminal defense counsel or offers a “‘plainly incorrect’ estimate of the likely sentence due to ignorance of applicable law of which he ‘should have been aware.‘” United States v. Booze, 293 F.3d 516, 518 (D.C. Cir. 2002) (quoting Gaviria, 116 F.3d at 1512). The former situation is illustrated in Abney, 812 F.3d at 1092, where counsel‘s failure to seek a continuance of sentencing so his client could benefit from a likely imminent favorable amendment to the Sentencing Guidelines, as other defense counsel had done, meant Abney was unable to benefit from a five-year reduction in a mandatory minimum that would have been available. The latter situation is illustrated in Booze, 293 F.3d at 518-19, where counsel‘s erroneous advice about a likely sentence upon conviction at trial resulted in the defendant rejecting a plea offer involving a sentence two-thirds lower than the sentence that was imposed after trial. Similarly, in Gaviria, 116 F.3d at 1512, counsel‘s advice, contrary to the court‘s precedent, that his client would be sentenced as a career offender, and thereby face thirty years to life imprisonment, resulted in Gaviria‘s rejection of a plea offer with a likely sentence of fifteen to twenty-two years’ imprisonment.
The Supreme Court has clarified that counsel‘s representational duty extends to advising the defendant about the consequences of pleading guilty beyond the criminal conviction itself. In Padilla v. Kentucky, 559 U.S. 356, 366 (2010), the Court concluded that even though removal is a civil proceeding, “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.” Because the law has “enmeshed criminal convictions and the penalty of deportation,” id. at 365–66, and because “deportation is a particularly severe penalty,” id. at 365 (internal quotation marks and citation omitted), the Court held counsel‘s failure to advise the defendant that pleading guilty would make him eligible for deportation was contrary to reasonable professional norms under Strickland‘s first prong, id. at 368-69. Counsel must advise defendants of “clear” and “easily determined” immigration-related collateral consequences of entering a guilty plea. Id. Because “there is no relevant difference between an act of commission and an act of omission in this context,” id. at 370 (internal quotation marks and citation omitted), the Court rejected the government‘s view that Strickland should be limited to situations where the defendant has received “affirmative misadvice” on matters in the criminal case, id. at 369–70.
Aguiar contends he was denied the effective assistance of counsel when trial counsel failed to explain to him that, upon rejecting the plea offer and going to trial, the government‘s superseding indictment would include more than one
My attorney . . . informed me verbally that the government had offered me a thirty (30) year [mandatory minimum] plea to resolve my case. He failed to inform me and explain to me the consequences of the consecutive sentences exposure[] I was actually facing, if I was convicted at trial. He failed to advise me regarding the d[e]sirability of accepting the plea offered, rather than to proceed to trial. Had I been aware[] that I was actually facing a total of 35-years for the two (2)
§ 924(c) counts consecutively with an additional 30-years for the remaining counts, I would ha[ve] accepted the 30-year plea offer and pleaded guilty in a timely manner instead of proceeding to trial.
The district court rejected Aguiar‘s argument without holding an evidentiary hearing, reasoning that Aguiar‘s “counsel‘s performance did not fall below an objective standard of reasonableness under prevailing professional norms by failing to explain to him the sentencing implications of violations to which he was not charged at the time that the plea offer was extended and expired without acceptance.” Aguiar, 82 F. Supp. 3d at 80.
Even assuming the absence of pending charges would distinguish Aguiar‘s circumstances from those of the defendants in Abney, Booze, and Gaviria, the question after Padilla is whether there were “clear” and “easily determined” severe sentencing consequences of Aguiar‘s rejection of the plea offer. Padilla, 559 U.S. at 368–69. The indictment pending at the time of the plea offer repeatedly described Aguiar‘s involvement in four armed bank robberies: it stated three times that Aguiar acted “while armed with firearms,” once that he “equi[pped] [himself] with handguns, pistols, [and] assault weapons,” three times that he was “armed with assault weapons and pistols,” three times that he “demand[ed] money at gunpoint,”
In Padilla, the Supreme Court, in reaffirming that “negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel,” concluded that counsel‘s Sixth Amendment duty to provide reasonable assistance to his client extends beyond the pending charges in an indictment. 559 U.S. at 373. Although at the time the plea offer was pending Aguiar had yet to be indicted for violating
Whether Aguiar can also show prejudice under Strickland‘s second prong depends on whether there is a reasonable probability that the “outcome of the plea process would have been different with competent advice.” Lafler, 566 U.S. at 163. That is, “but for the ineffective advice of counsel there is a reasonable probability that . . . the defendant would have accepted the plea and the prosecution would not have withdrawn it . . . , that the court would have accepted its terms, and that the conviction or sentence,
Aguiar points to the fact that the “loss of the plea opportunity led to a trial resulting in a conviction on more serious charges [and] the imposition of a more severe sentence,” namely, 60 years’ imprisonment (including 35 years’ mandatory minimum imprisonment on the
The government responds that Aguiar cannot show either deficiency or prejudice under Strickland because he was informed of the risk of additional
At a January 2005 status hearing, after Aguiar had rejected the plea offer and a superseding indictment had been filed charging him with two violations of
The differences mainly . . . would be three levels for acceptance of responsibility and . . . whether or not there are one or more than one conviction under
§ 924(c) . But frankly, Your Honor, adding, all it really does to the calculation is add back in the three additional level[s] that he otherwise would get for acceptance of responsibility, and so his new range would be 457 to 481 months [38 to 40 years].
Id. at 35-36. The record on appeal does not include the prosecutor‘s sentencing analysis nor otherwise indicate it was made part of the record of this status hearing. Absent elaboration of the advice counsel gave Aguiar about
What Aguiar needed to know before he decided whether or not to accept the plea offer was the worst-case scenario if he rejected the plea and went to trial. Although this “court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689, “[t]he record is quite sketchy regarding plea discussions,” United States v. Winstead, 890 F.3d 1082, 1088 (D.C. Cir. 2018). “[T]he motion and the files and records of the case” do not “conclusively show” Aguiar was advised that a consequence of rejecting the plea offer was mandatory life imprisonment or at least a longer mandatory minimum sentence.
Our colleague‘s partial dissent is twice flawed. First, our colleague ignores that the district court‘s reason for denying an evidentiary hearing was erroneous as a matter of law, in view of the inconclusive state of the record and the standard announced in Padilla, 559 U.S. at 365, 368–69, and that such error was necessarily an abuse of discretion. See, e.g., Koon v. United States, 518 U.S. 81, 100 (1996) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)); Kickapoo Tribe v. Babbitt, 43 F.3d 1491, 1497 (D.C. Cir. 1995). Second, our colleague would affirm the district court and hold that Aguiar has not established Strickland prejudice for lack of contemporaneous evidence. See Lee, 137 S. Ct. at 1967. This misreads Lee. In Lee, the Supreme Court addressed the contemporaneous evidence that had been produced at the evidentiary hearing on Lee‘s § 2255 claim of ineffective assistance of counsel, id. at 1967–68; such a hearing has yet to be held on Aguiar‘s § 2255 motion. The question now is whether Aguiar has made sufficient allegations to warrant an evidentiary hearing to prove his
Accordingly, we affirm the denial of Aguiar‘s Sixth Amendment challenge on the ground of voir dire closure, and we reverse and remand the plea bargaining challenge.
GRIFFITH, Circuit Judge, dissenting in part: I cannot join Part III of the majority opinion. Even assuming that Aguiar‘s counsel performed deficiently when explaining the plea offer, Aguiar failed to present sufficient evidence of prejudice. The only evidence Aguiar advanced to make this showing was an affidavit he executed years after his conviction. The Supreme Court has held that such post hoc assertions, without more, are insufficient to show prejudice. I see no abuse of discretion in the district court‘s decision to forgo an evidentiary hearing, and I would affirm its judgment in full.
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Aguiar petitioned for relief under
Although the majority acknowledges that we review for abuse of discretion, Maj. Op. at 4, it does not seem to apply that standard. Instead, the majority reverses the district court and remands the case because the record is “quite sketchy regarding plea discussions.” See id. at 15. This standard is drawn from cases in which defendants brought ineffective-assistance claims on direct appeal, not on collateral review under § 2255. See id. (relying on United States v. Winstead, No. 12-3036, slip op. at 13 (D.C. Cir. May 25, 2018), and United States v. Rashad, 331 F.3d 908, 912 (D.C. Cir. 2003)). These cases do not provide the correct standard for determining whether to remand Aguiar‘s claim. When a defendant raises an ineffective-assistance claim on direct appeal, our “normal practice” is to remand when we “cannot definitely reject” the claim. Winstead, slip op. at 13 (citing Rashad, 331 F.3d at 912). We follow that practice because the district court is the forum best suited to pass on such claims in the first instance. See United States v. Eshetu, 863 F.3d 946, 957 (D.C. Cir. 2017). Here, however, the majority concludes in the § 2255 context that the district court abused its discretion by failing to hold an evidentiary hearing. I see no basis for that conclusion.
To succeed on his ineffective-assistance claim, Aguiar must satisfy both of Strickland‘s prongs: he must show that his lawyer‘s performance was deficient and that this deficiency prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 697 (1984). Here, the majority did not need to address the performance prong because, even assuming a deficient performance, the record contains virtually no evidence of prejudice.
To establish prejudice, Aguiar “must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The probability of a different result must be “substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). This showing is almost as demanding as a “more-probably-than-not standard.” id. at 111-12. In the plea-offer context, Aguiar must show a “reasonable probability” that he would have accepted the plea offer if his attorney had performed adequately. See, e.g., Lafler v. Cooper, 566 U.S. 156, 164 (2012). Specifically, he must present evidence that he would have accepted the plea offer if his lawyer had correctly explained the sentencing exposure he could face if the government sought a new indictment charging him with additional firearm crimes. Aguiar failed to present any evidence that could make this showing.1
Aguiar‘s only evidence that he would have accepted the plea offer is his affidavit, which he executed approximately six years after his conviction. There he said: “Had I been aware[] that I was actually facing a total of 35-years for the two (2)
In Lee v. United States, 137 S. Ct. 1958 (2017), the Court set out a clear rule for assessing prejudice in this plea-offer context. We must look for contemporaneous evidence of whether the defendant would have accepted his plea offer; the defendant‘s assertions after conviction are not enough: “Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney‘s deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant‘s expressed preferences.” Id. at 1967.2
At the hearing, Aguiar‘s counsel confirmed to the district court that he and Aguiar had discussed the plea offer, Aguiar‘s career offender status, and what
In the absence of any contemporaneous evidence, Aguiar offers only a post hoc assertion that he would have accepted his plea offer. See Aguiar Br. 52. But that assertion is not enough under Lee.3 The majority seems to shift the burden onto the government to show that Aguiar was “specifically advised” that his sentencing exposure could increase if he opted for trial. See Maj. Op. at 15. But that is not where the burden lies. To establish prejudice, Aguiar must show a “reasonable probability” that he would have accepted the plea offer, and he has not come close to satisfying that standard.
Of course, it is always possible that a district court may find additional evidence on remand. But we review for abuse of discretion, not the mere possibility of finding additional evidence. I would affirm the district court‘s decision to forgo an evidentiary hearing as a sound exercise of its discretion.
I respectfully dissent.
Notes
Available at www.justice.gov/usam/criminal-resource-manual-112-firearms-charges. Similarly, just months prior to Aguiar‘s arrest and indictment, the Attorney General “strongly encourag[ed]” the use of “statutory enhancements” likeCharges under
18 U.S.C. § 924(c) can be filed whenever a firearm is used or carried during the course of a violent or drug trafficking crime. The mandatory consecutive and enhanced punishment under this section, which can significantly increase a sentence especially where firearms are used in numerous criminal acts of the gang, make this statute one of the most potent tools in prosecuting gang activity, especially those engaged in multiple criminal acts. . . . Firearms violations should be aggressively used in prosecuting violent crime. They are generally simple and quick to prove. The mandatory and enhanced punishments for many firearms violations can be used as leverage to gain plea bargaining and cooperation from offenders.