United States v. Anderson

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 20, 2010 Decided January 28, 2011

No. 05-3100

UNITED STATES OF AMERICA,
APPELLEE

v.

ANTHONY D. ANDERSON,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 04cr00343-01)

Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.

Lauren H. Dickie, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Roy W. McLeese III, Assistant
U.S. Attorney.
 2

Before: BROWN, Circuit Judge, and EDWARDS and
RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: Anthony D. Anderson appeals his
conviction and 235-month sentence for possession of a firearm
and ammunition by a felon. See 18 U.S.C § 922(g)(1). He
alleges he received ineffective assistance of counsel and the
district court committed error at sentencing. We remand for an
evidentiary hearing on Anderson’s Sixth Amendment claim,
because the record is insufficient for us to decide whether he
was prejudiced by any mistakes his lawyer may have made.
We vacate Anderson’s sentence and remand for resentencing
because, given the expansive language of 18 U.S.C. § 3661, it
was plain error for the district court to conclude it was
precluded from considering Anderson’s allocution at
sentencing.

I

Officers of the Metropolitan Police Department stopped a
vehicle Anderson was driving when he ran a stop sign. His
daughter’s fiancé, Terrence Saunders, was in the passenger
seat. Officers James Boteler and David Chumbley testified
they thought Saunders might be ingesting drugs, and they
removed him from the car before Boteler asked Anderson for
his license. At that point, Boteler says, Anderson reached to the
floor between his legs, and Boteler opened the car door in time
to see Anderson holding a semiautomatic handgun just off the
floor. As Boteler pulled Anderson out of his car, the manual
transmission vehicle somehow lurched forward and struck the
car parked just ahead of it. 1 The gun was the only evidence
1
Officer Boteler testified Anderson’s right hand “somehow touched
the gear shift or manipulated the gear shift in some manner in which
 3

found in the car, no fingerprints were lifted from the gun, and
no evidence was recovered from Anderson or Saunders.

At the first status conference in the district court,
Anderson’s trial counsel admitted he had not calculated the
sentence Anderson faced under the Sentencing Guidelines, but
said he and his client had “decided to go to trial” anyway. Tr.
9/7/2004, at 2. The district court ordered Anderson’s lawyer to
calculate “what [Anderson] would be facing” under the
Guidelines so that there would be “no misunderstanding
[about] what [his] choices [were].” Id. at 6. At a subsequent
motions hearing, trial counsel still had not calculated the
Guidelines range, but said he “believe[d]” Anderson was
facing a fifteen-year mandatory minimum as a “career
offender.” Tr. 10/28/2004, at 60. Again, the district court asked
the lawyer to calculate the Guidelines range. Id. at 62–65.

On the day appointed for trial, Anderson’s lawyer said
Anderson intended to plead guilty, contrary to his earlier
representation. The court asked trial counsel if he had done the
Guidelines calculation, and he said he had. Tr. 11/8/2004, at 2.
The Government’s attorney then proffered the police officers’
testimony, and the court began a plea colloquy with Anderson.
Id. at 10–11, 12. At first, Anderson agreed with the
Government’s version of the story. Id. at 12. When the court
questioned him more specifically, though, Anderson said he
had not reached down for a gun when Boteler asked for his
license. Id. at 13. Instead, Anderson said, the police only found
the gun “up under the seat” after removing both Anderson and
his passenger from the car and searching it. Id. at 13–14. Still,

the vehicle lurched forward.” Tr. 11/9/2004, at 278. At sentencing
and on appeal, Anderson claims that the car lurched forward when he
took his foot off the clutch to “attempt[] to push the gun under the
seat with his foot.” Dist. Ct. Docket No. 26, quoted in Appellant’s
Br. 22 n.7.
 4

Anderson admitted to having “place[d] the gun there
originally,” id. at 14, and confirmed that he was willing to go
forward with the plea, id. at 15.

In the ensuing penalty discussion between counsel, the
district court judge, and the probation officer, it became clear
that Anderson’s lawyer had miscalculated the sentencing
range. Id. at 21–28. He had erroneously disregarded as “stale”
certain prior offenses 2 that made Anderson an “armed career
criminal” subject to a fifteen-year mandatory minimum with a
Guidelines range of 235 to 293 months—188 to 235 months if
he accepted responsibility. See 18 U.S.C. § 924(e)(1). 3 This
was far longer than the statutory maximum of ten years and the
Guidelines range of 77 to 96 months Anderson’s lawyer had
calculated—the calculation on which Anderson had relied.
When Anderson realized the severity of the sentence he was
facing, he decided not to plead guilty. Tr. 11/8/2004, at 30.

At trial, the court ruled the Government could not use
Anderson’s testimony in the aborted plea colloquy to impeach
him, but noted the Government could use it as the basis for a
perjury charge. Tr. 11/9/2004, at 233. The Defense put on no

2
According to Anderson’s lawyer, the three relevant priors were for
carrying a dangerous weapon, assault with a dangerous weapon, and
attempted distribution of cocaine. Tr. 11/8/2004, at 28.
3
Normally certain prior convictions that are more than 10 years old
are not counted for purposes of calculating criminal history. See
U.S.S.G. § 4A1.2(e). But the armed career criminal enhancement
applies to persons convicted under 18 U.S.C. § 922(g) with at least
three prior convictions for violent felonies or serious drug offenses,
regardless of the age of the offenses. See U.S.S.G. § 4B1.4 app. n.1
(“[T]he time periods for the counting of prior sentences under
§ 4A1.2 . . . [are not] applicable to the determination of whether a
defendant is subject to an enhanced sentence under 18 U.S.C.
§ 924(e).”).
 5

witnesses, and Anderson declined to testify “irrespective of
whether [he] would be impeached.” Tr. 11/10/2004, at 399.
Anderson now says he would have testified but for his lawyer’s
mistaken advice that testifying truthfully to his innocence
would have exposed him to a fifteen-year penalty for perjury.

The jury found Anderson guilty of unlawful possession of
a firearm and ammunition by a felon.

At sentencing, Anderson said the gun belonged to
Saunders and Anderson had only taken responsibility for it to
protect his daughter’s fiancé from prison. Tr. 5/6/2005, at 8–9.
He argued for the mandatory minimum fifteen-year sentence
on that basis. Id. at 7–8. According to Anderson’s sentencing
memorandum, Saunders “threw the gun in the direction of Mr.
Anderson,” and “[t]he gun landed on the floor in front of Mr.
Anderson where he left it for fear that the police would see him
reach down between his legs and think he intended to shoot
them.” Memorandum in Aid of Sentencing at 1, United States
v. Anderson, No. 04-cr-343, (D.D.C. Feb. 11, 2005). When he
was ordered out of the car, Anderson “attempted to push the
gun under the seat with his foot” “[a]t the same time [he] was
getting out.” Id.

The district court sentenced Anderson to 235 months in
prison, the low end of the Guidelines range. Tr. 5/6/2005, at 14.
Anderson argues that certain comments the sentencing judge
made betray the court’s misunderstanding of the scope of its
discretion at sentencing. First, Anderson says the court
impermissibly treated a sentence within the Guidelines range
as presumptively correct and therefore refused to consider
departing from that range without a special evidentiary
justification. Second, Anderson argues the court mistakenly
believed it could not consider his allocution at sentencing.
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II

A

Anderson argues his trial counsel failed to provide
constitutionally adequate assistance because he miscalculated
Anderson’s Sentencing Guidelines range, induced him to
begin a plea colloquy that he terminated when he learned the
true sentencing range, and then advised him not to testify in his
own defense on the mistaken belief that any exculpatory
testimony would conflict with the aborted plea colloquy and
make him liable for perjury.

“In order to succeed on a Sixth Amendment claim of
ineffective assistance of counsel, a defendant must show two
things: (1) ‘that counsel’s performance was deficient,’ and (2)
‘that the deficient performance prejudiced the defense.’”
United States v. Shabban, 612 F.3d 693, 697 (D.C. Cir. 2010)
(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).
“To establish deficiency, [he] must show his ‘counsel’s
representation fell below an objective standard of
reasonableness.’ To establish prejudice, he ‘must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.’” Porter v. McCollum, 130 S. Ct. 447, 452
(2009) (citations omitted) (quoting Strickland, 466 U.S. at 688,
694)). “This court’s general practice is to remand the claim for
an evidentiary hearing unless the trial record alone
conclusively shows that the defendant either is or is not entitled
to relief.” United States v. Shabban, 612 F.3d 693, 698 (D.C.
Cir. 2010) (quoting United States v. Rashad, 331 F.3d 908,
909–10 (D.C. Cir. 2003)).

Anderson does not deny that the trial record is inadequate
for us to determine whether he was denied his Sixth
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Amendment right to counsel. For example, Anderson offers no
evidence that his lawyer advised him a perjury conviction
would carry a fifteen-year penalty or that he would have
testified at trial but for his fear of indictment for perjury.

The Government insists we may deny Anderson’s
ineffective assistance claim forthwith because the record needs
no supplementation. Even under Anderson’s version of the
facts, the Government contends, his claim cannot satisfy the
prejudice requirement of Strickland. According to the
Government, Anderson’s insistence that he was just “trying to
kick the gun up under the seat” after Saunders threw it to him
amounts to an admission of constructive possession. Tr.
5/6/2005, at 8–9. We disagree.

Our standard for constructive possession requires that
there be “some action, some word, or some conduct that links
the individual to the contraband and indicates that he had some
stake in them, some power over them.” United States v. Bryant,
523 F.3d 349, 355 (D.C. Cir. 2008) (quotation marks and
alteration omitted); see United States v. Foster, 557 F.3d 650,
657 (D.C. Cir. 2009) (“Constructive possession requires that
the defendant knew of, and was in a position to exercise
dominion and control over, the contraband.”). It is not clear
from the record whether Anderson had the necessary stake in
the handgun to have constructively possessed it. Though
“evasive conduct . . . coupled with proximity” to a gun “may
suffice” to establish constructive possession, see United States
v. Booker, 436 F.3d 238, 242 (D.C. Cir. 2006) (emphasis
added), that is a question for the trier of fact.

Because the record before us is insufficient to decide
whether Anderson received constitutionally adequate counsel,
we remand for an evidentiary hearing on his Sixth Amendment
claim.
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B

Anderson challenges his sentence on the ground that the
district court placed two inappropriate restraints on its
discretion at sentencing: The sentencing judge was unwilling
to depart from the Guidelines range without some factual
showing to justify the departure, and she refused to consider
Anderson’s exculpatory statements at the sentencing hearing.

Because he did not object to the district court’s statements
at the sentencing hearing, we review Anderson’s
sentencing-related claims for plain error. See In re Sealed
Case, 204 F.3d 1170, 1171 (D.C. Cir. 2000). To justify
reversal, “[i]n addition to being obvious, the error generally
must also have been ‘prejudicial.’” United States v. Saro, 24
F.3d 283, 286 (D.C. Cir. 1994). That is, “the defendant must
show a reasonable likelihood that the sentencing court’s
obvious errors affected his sentence.” Id. at 288. “While our
plain error review in the sentencing context requires a ‘slightly
less exacting’ showing of prejudice than for trial errors, an
appellant must still show that ‘from the perspective of the trial
court, the error was so plain that the trial judge and prosecutor
were derelict in countenancing it, even absent the defendant’s
timely assistance in detecting it.’” In re Sealed Case, 204 F.3d
at 1172 (quoting Saro, 24 F.3d at 286, 287 (alterations and
quotation marks omitted)).

1

Anderson first argues the district court erred by applying a
presumption of reasonableness to its within-Guidelines
sentence. Anderson says the judge’s comments at the
sentencing hearing suggest that any departure from the
Guidelines range would have to be justified with a special
factual finding. Recognizing that Anderson’s sentence at the
 9

low end of the Guidelines range “certainly is a hefty sentence,”
the judge said, “there is nothing in your life that the court can
point to, or that you can, . . . that the court can look to, to
consider not giving you what the sentencing guidelines
require.” Tr. 5/6/2005, at 13–14 (emphases added); see also id.
at 13 (“[T]here really isn’t something that would ordinarily
come forward for [downward departure from the Guidelines],
which would be the reason to consider it.”). According to
Anderson, these statements amount to a presumption that a
sentence within the Guidelines range is reasonable.

The Supreme Court clarified two years after Anderson
was sentenced that “the sentencing court does not enjoy the
benefit of a legal presumption that the Guidelines sentence
should apply.” Rita v. United States, 551 U.S. 338, 351 (2007).
That presumption attaches only in the court of appeals. See id.

Assuming arguendo the district court applied an
erroneous presumption of reasonableness to the Guidelines
sentence, we would not find the error plain. “[W]here, as here,
the law was unsettled at the time of trial but becomes settled by
the time of appeal, we assess error as of the time of trial.”
United States v. Mouling, 557 F.3d 658, 664 (D.C. Cir. 2009).
When Anderson was sentenced, no clear precedent established
that district courts may not avail themselves of the
presumption of reasonableness applied by appellate courts to
within-Guidelines sentences. Thus, “any error in employing
such [a presumption] cannot have been plain,” id., and we need
not decide the question.

Of course, the district court will be bound by Rita at
resentencing and may not apply a presumption of correctness
to a within-Guidelines sentence.
 10

2

Anderson next alleges the district court misapprehended
the breadth of its discretion in refusing to consider his
allocution at sentencing. We agree. The court said its
sentencing

decisions were made based on the testimony
that was provided. And obviously the
information I believe that you’ve provided [at
the sentencing hearing] as to what occurred is
not something that’s on the record, if I’m not
mistaken. And so, you know, both the court and
the jury makes a decision based on what the
record is.

Tr. 5/6/2005, at 16. It was clear at the time of Anderson’s
sentencing hearing, however, that a court could consider the
defendant’s post-trial statement in crafting his sentence. Any
assumption to the contrary violates the rule that “[n]o
limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of an
offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence.”
18 U.S.C. § 3661; see United States v. Tucker, 404 U.S. 443,
446 (1972) (“[A sentencing] judge may appropriately conduct
an inquiry broad in scope, largely unlimited either as to the
kind of information he may consider, or the source from which
it may come.”). 4

4
The legislative history of 18 U.S.C. § 3577, predecessor to current
§ 3661, cites with approval the Supreme Court’s observation that
“modern concepts individualizing punishment have made it all the
more necessary that a sentencing judge not be denied an opportunity
to obtain pertinent information by a requirement of rigid adherence
to restrictive rules of evidence properly applicable to the trial.”
 11

The Government does not defend the district court’s
statement of the law, but concludes “[i]t is not entirely clear . . .
what the district court meant.” Appellee’s Br. 50. The
Government speculates that the judge “could have been
explaining to appellant that in exercising her discretion to
formulate a sentence, she was going to give greater weight to
the sworn testimony and evidence presented at trial, and less
weight to appellant’s unsworn statements at sentencing.” Id. at
51. This charitable reading of the district court’s statement has
no basis in the record. The court made no mention of
“discretion” or the “weight” of evidence, apparently believing
its ken to be limited, like a jury’s, to the evidence presented at
trial. Cf. United States v. Holton, 116 F.3d 1536, 1542 (D.C.
Cir. 1997) (“[C]onsideration by the jury of documents not in
evidence is error.”). But a sentencing judge is subject to no
such limitation. Although it need not assign any weight to a
defendant’s unsworn statements, the sentencing court may
consider the allocution along with any other available
“information concerning the [defendant’s] background,
character, and conduct.” 18 U.S.C. § 3661; see also United
States v. Ayers, 428 F.3d 312, 315 (D.C. Cir. 2005)
(“Mitigating evidence [from the defendant at sentencing
pursuant to § 3661] would have been relevant, of course, to the
court’s analysis under § 3553(a).”); United States v. Doe, 934
F.2d 353, 358 (D.C. Cir. 1991) (noting the defendant raised
information relevant to sentencing at her sentencing hearing).

The “somewhat lighter” prejudice requirement that
applies in the context of sentencing error is satisfied here. Saro,
24 F.3d at 288. Because the court thought it was not allowed to

Williams v. New York, 337 U.S. 241, 247 (1949), cited in S. Rep. No.
91-617, at 167 (1969) (“Appropriately evaluated hearsay is
permissible. The exclusionary rules developed for trial on the issue
of guilt are not to be applied.” (citation omitted)); see H.R. Rep. No.
91-1549, at 63 (1970) (citing Williams, 337 U.S. 241).
 12

consider statements not in evidence at sentencing, it neglected
to consider Anderson’s entire allocution. That allocution was
relevant to Anderson’s background, his character, and the
conduct for which he was sentenced:

What [the prosecutor] said about me, yeah,
I did all the things, but I was young and very
stupid at the time. And I feel as though I done
paid for them crimes that I did. And for me to be
up here looking at 25 years for a gun that I
never really possessed is to be kind of—you
know, it just don’t make sense now. . . .

I haven’t been in my daughter’s life
because I been locked up most of my life and
this is her boyfriend and they plan on getting
married and he’s 10 years probation. So when
he does it, I’m looking at I got 5 years for a gun,
and probably if I take a cop 36 months or 42
months or something like that, and I, like, I feel
like I owe her that. You know what I mean?
And she would look at it like, Oh, my father he
ain’t did nothing for me, but he did this here for
me.

But I never knew I was looking at this kind
of penalties. If I did, then when the police
approached the car, it would have been said,
“Oh, this ain’t my gun. This is his gun.”

I never thought that I’m going to be
looking at the rest of my life with something,
like I said, I never really possessed.
 13

And like I was telling you when I was
taking my cop, the police lied. Never seen the
gun in my hand. I was trying to kick the gun up
under the seat, and that’s what he seen, Your
Honor. But other than that, that’s all I have to
say.

Tr. 5/6/2005, at 8–9. Anderson’s sentence “might likely have
been different” if the sentencing judge had considered
Anderson’s description of his minimal responsibility for the
gun, the brief time that it was in his proximity, and his
generous impulse toward his daughter and her fiancé. United
States v. Smith, 267 F.3d 1154, 1160 (D.C. Cir. 2001)
(concluding a sentencing error was prejudicial). No evidence
in the record conveyed Anderson’s unique perspective on the
relevant events.

The district court, of course, is in the best position to
evaluate Anderson’s credibility. See Gall v. United States, 552
U.S. 38, 51–52 (2007). And if what Anderson said is true, it is
for the district court to determine how that should affect his
sentence. See id. Therefore, “we express no view as to the
ultimate propriety” of the sentence and remand “only to ensure
that the appropriate methodology is followed.” United States v.
Taylor, 937 F.2d 676, 684 (D.C. Cir. 1991).

We vacate Anderson’s sentence, and we remand his case
for an evidentiary hearing on his ineffective assistance claim.
If the district court determines Anderson received
constitutionally adequate counsel, it should resentence him.

So ordered.