United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 22, 2002 Decided June 14, 2002
No. 01-3005
United States of America,
Appellee
v.
Michael Jonathan Booze,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 89cr00160-24)
A. J. Kramer, appointed by the court, argued the cause and
filed the briefs as amicus curiae on behalf of appellant.
Michael Jonathan Booze, appearing pro se, was on the
briefs for appellant.
David B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher, Mary-Patrice
Brown, Stephen M. Campbell, and William J. O'Malley Jr.,
Assistant U.S. Attorneys.
Before: Ginsburg, Chief Judge, and Henderson and
Rogers, Circuit Judges.
Opinion for the Court filed by Chief Judge Ginsburg.
Ginsburg, Chief Judge: An inmate serving a 171/2-year
sentence filed a s 2255 motion alleging, among other things,
that his attorney caused him to reject a plea offer with a five-
year sentence by advising him erroneously that he would be
sentenced to less than five years if he went to trial and was
convicted. The Government opposed the motion solely on the
erroneous ground that such advice does not constitute ineffec-
tive assistance of counsel unless the attorney failed to make a
good-faith estimate of the likely sentence, of which there was
no evidence. The district court denied the s 2255 motion on
that ground. On appeal, the Government acknowledges its
error and asks the court to remand the case for the district
court to determine, after an evidentiary hearing, whether
such a plea offer was in fact made. Over the appellant's
objection, we follow the course urged by the Government.
I. Background
In 1989 Michael Booze and his two brothers were indicted
for their role in a large drug conspiracy run by Marcos
Anderson. For a full account, see United States v. Anderson,
39 F.3d 331 (D.C. Cir. 1994). For present purposes it mat-
ters only that, according to Booze, the Government offered to
recommend a five-year prison sentence for him if he and each
of his brothers would enter a guilty plea. Booze alleges that
his brothers wanted to accept the offer but that his attorney,
Achim Kriegsheim, caused him to reject it. Kriegsheim
allegedly told Booze that if he went to trial and was convicted,
then he would be sentenced to less than five years. So Booze
went to trial, was convicted, and ultimately was sentenced to
171/2 years.*
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* The district court initially sentenced Booze to 22 years but
reduced the sentence after this court instructed it to attribute to
Booze then filed a s 2255 motion, claiming among other
things that Kriegsheim's misadvising him of the consequences
of rejecting the plea offer deprived him of his right to
effective assistance of counsel, as guaranteed by the Sixth
Amendment to the Constitution of the United States. The
Government opposed the motion, arguing only that "assuming
that the defendant is correct about the terms of the plea offer
and about his lawyer's sentencing prediction, there is no
evidence that his lawyer did not make a good-faith estimate of
the defendant's sentence." The district court denied the
motion on that ground.
Booze filed a timely appeal. He has submitted a brief pro
se and is also represented by an amicus curiae, whose partic-
ipation the court invited and to whom the court is grateful.
II. Analysis
The amicus contends principally that Kriegsheim's flawed
advice constituted ineffective assistance of counsel without
regard to whether he acted in good faith. The Government
concedes that the district court -- at its urging -- applied the
wrong legal standard, and asks the court to remand the
matter to the district court for further factual development.
An attorney deprives a defendant of his constitutional right
to representation only if his performance falls below "an
objective standard of reasonableness" and likely affects the
outcome of the case. Strickland v. Washington, 466 U.S. 668,
688, 691-92 (1984). This circuit has held that a lawyer who
advises his client whether to accept a plea offer falls below
the threshold of reasonable performance if the lawyer makes
a "plainly incorrect" estimate of the likely sentence due to
ignorance of applicable law of which he "should have been
aware." United States v. Gaviria, 116 F.3d 1498, 1512 (1997).
The Government, apparently due to its own inexcusable
ignorance of applicable law, failed in its motion opposing
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Booze only the quantity of cocaine that had been within the "scope
of the conspiratorial agreement [he] joined." Anderson, 39 F.3d at
352.
Booze's habeas petition to apprise the district court of the
standard set forth in Gaviria.* Instead pointing to cases
from the Seventh Circuit, the Government argued that a
lawyer's recommendation regarding a plea offer falls below an
objective standard of reasonableness only if "the lawyer did
not 'attempt to learn the facts of the case and make a good-
faith estimate of a likely sentence.' " Opposition at 12 (quot-
ing United States v. Martinez, 169 F.3d 1049, 1053 (7th Cir.
1999)). The district court unfortunately relied upon the
reason given by the Government to deny Booze's motion.
The decision of the district court, based as it is upon the
wrong legal standard, must be vacated because applying the
correct legal standard could yield a shorter sentence --
assuming, that is, the five-year offer was made. If the offer
was made and spurned as alleged, then Kriegsheim's advice
may have caused Booze to be sentenced to 171/2 rather than to
five years in prison.
The issue remaining between the parties is whether the
court should remand the case to the district court for an
evidentiary hearing to determine whether the Government
made the alleged plea offer. The amicus resists that course,
arguing that the Government, by opposing Booze's s 2255
motion in the district court without ever disputing that it
made the offer, has waived the factual contention it now seeks
to raise in an evidentiary hearing. As the amicus points out,
the Government in its motion in opposition did not argue in
the alternative, that is, did not suggest that if the court
rejected its claim that Kriegsheim's performance was reason-
able as a matter of law, then the court should hold an
evidentiary hearing to determine whether the offer was made.
The question, then, is whether the Government may be
heard to ask this court to order an evidentiary hearing even
though it failed to make that request of the district court.
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* The omission is all the more egregious because the Government
cited Gaviria elsewhere in the same section of the motion in which
it set forth the wrong standard. Apparently government counsel
either cited the case without reading all of it or knowingly ignored
its holding.
This court follows "the general rule [that] ... issues and legal
theories not asserted at the district court level ordinarily will
not be heard on appeal"; but the court also acknowledges
that the rule "should not be applied where the obvious result
would be a plain miscarriage of justice." United States v.
TDC Mgmt. Corp., No. 01-5150, slip op. at 7 (D.C. Cir. May 3,
2002); see also Singleton v. Wulff, 428 U.S. 106, 121 (1976);
Hormel v. Helvering, 312 U.S. 552, 558 (1941). Here the
Government has indeed presented on appeal an issue --
whether Booze was in fact offered the plea he claims -- it did
not assert before the district court. We shall exercise our
discretion to consider that issue lest a plain miscarriage of
justice be the result.
Consider: Booze is asking us to let him out of prison
because he would have accepted the alleged plea offer of five
years if only his lawyer had competently advised him. Sup-
pose no such offer was made? To grant Booze's request
would be to cut short Booze's 171/2-year sentence due solely to
the Government's oversight in failing to ask the district court
in the alternative for an evidentiary hearing. That would be
an injustice to the public the criminal justice system is
supposed to serve.
The other argument advanced by the amicus need not
detain us long. The amicus maintains that Kriegsheim's
successor as Booze's attorney also provided him ineffective
assistance, this time by preparing inadequately for the resen-
tencing hearing required by our earlier remand. The district
court ruled correctly, however, that Booze failed to demon-
strate that his representation at that hearing was in any way
prejudicial to him. The amicus suggests only that a better
prepared lawyer could have argued more effectively that
some of the drug transactions conducted by Michael Booze's
brothers should not have been attributed to him. Even a
better prepared lawyer would have been making an argument
that runs counter to the law of conspiracy; therefore, he had
no reasonable prospect of getting Booze a lower sentence.
See Booze I, 108 F.3d at 384 (labeling Booze's contention
"that he should not be held accountable for drug amounts
that he had not personally handled" as "a position that ...
reflected a lack of familiarity with the principles of conspiracy
law").*
III. Conclusion
For the foregoing reasons, the judgment of the district
court is reversed. Booze's claim of ineffective assistance of
counsel with respect to the alleged plea offer is remanded to
the district court for further proceedings consistent with this
opinion. In light of the circumstances -- Booze has already
served twelve years of a sentence that, if his claims are true,
should have been five years -- the district court should
conduct such proceedings as soon as possible.
So ordered.
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* The arguments advanced by Booze in his pro se brief were
addressed adequately by the district court and do not warrant
further discussion in a published opinion.