United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2004 Decided January 21, 2005
No. 02-3010
UNITED STATES OF AMERICA,
Appellee
v.
RASHEED RASHAD, A/K/A MICHAEL THOMAS,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00159-01)
Daniel H. Bromberg, appointed by the court, argued the
cause and filed the briefs for appellant.
Thomas S. Rees, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney, John R. Fisher, Thomas J. Tourish, Jr., and
Daniel M. Cisin, Assistant U.S. Attorneys.
Before: GINSBURG, Chief Judge, and RANDOLPH and
ROGERS, Circuit Judges.
Opinion for the court filed by Chief Judge GINSBURG.
2
Dissenting opinion filed by Circuit Judge RANDOLPH.
GINSBURG, Chief Judge: Rasheed Rashad appeals the
decision of the district court rejecting his claim to have received
ineffective assistance of counsel. Rashad alleged his trial
counsel never told him his sentence might have been reduced for
accepting responsibility if he had pleaded guilty rather than
going to trial. After an evidentiary hearing, the district court
ruled that Rashad suffered no prejudice because he could not
have pleaded guilty while maintaining his innocence to some of
the charges against him. Because the district court seems not to
have realized that it had the discretion to accept a guilty plea in
these circumstances, see North Carolina v. Alford, 400 U.S. 25,
37 (1970), we reverse and remand the case for the district court
to make additional findings of fact.
I. Background
Rashad was arrested after selling crack cocaine to a
government informant in two separate transactions, one of
which was captured on videotape. Several days after his arrest,
government attorneys showed Rashad the videotape and
recounted all their evidence of his drug offenses with the goal of
convincing him to plead guilty and to supply information
regarding other individuals whom the Government was
pursuing. Rashad refused to cooperate and instructed his
counsel to start preparing for trial. The Government then filed
an indictment that charged, in addition to the drug offenses,
several weapons offenses pre-dating the drug transactions.
Some months later Rashad decided to cooperate. He
admitted to the drug charges in the indictment and provided the
Government with details of those and other crimes. Rashad also
3
provided information about various drug rings operating in West
Virginia and in the Washington, D.C. area. At the same time,
Rashad insisted he was not guilty of some of the weapons
offenses with which he was charged.
Rashad was told he was well on his way to earning a
downward departure from his presumptive sentence, pursuant to
§ 5K1.1 of the United States Sentencing Guidelines, for
providing substantial assistance to the Government. When a
government attorney told Rashad, however, that in order to
qualify for a departure he might have to testify against his wife,
he refused to cooperate any further. According to Rashad, he
believed the only options he had were to plead guilty and
cooperate with the government or to go to trial. When
cooperation became unpalatable, he chose trial.
A jury found Rashad guilty of the drug charges but not
guilty of the weapons charges, and the district court sentenced
Rashad to 235 months’ imprisonment. Rashad appealed,
arguing that he had received ineffective assistance of counsel
because his attorney had understated the strength of the
Government’s case against him and had never accurately
informed him of his potential sentence if he was found guilty at
trial. This court held that Rashad stated a valid claim of
ineffective assistance and remanded the record to the district
court for an evidentiary hearing. See United States v. Rashad,
331 F.3d 908, 911–12 (D.C. Cir. 2003).
Rashad, his wife, and his trial counsel testified at the
hearing on remand. Based upon their testimony, the district
court found that Rashad’s trial counsel had in fact informed
Rashad that the Government’s case against him was strong and
had encouraged him to plead guilty. Rashad also claimed his
attorney was ineffective because he never told Rashad that by
4
pleading “straight up” -- that is, without having entered into a
plea bargain with the Government -- he could get a reduced
sentence pursuant to § 3E1.1 of the Guidelines for having
accepted responsibility for his crimes. The court rejected that
claim, however, on the ground that the alleged omission,
assuming there was one, did not prejudice Rashad because he
could not have pleaded guilty while insisting he was innocent of
some of the weapons charges. The district court therefore held
there was no basis for Rashad’s claim to have received
ineffective assistance of counsel.
II. Analysis
On this appeal Rashad argues the district court erred in
ruling that, as a matter of law, he could not have pleaded guilty
and therefore could not have gotten his sentence reduced for
having accepted responsibility for his crimes. According to
Rashad, the district court’s ruling is inconsistent with Alford, in
which the Court held that an “individual accused of a crime may
voluntarily, knowingly, and understandingly consent to the
imposition of a prison sentence even if he is unwilling or unable
to admit his participation in the acts constituting the crime.”
400 U.S. at 37.
According to the Government, however, the district court
did not conclude Rashad was ineligible to plead guilty but
merely stated that, under the facts presented, it would not have
accepted Rashad’s plea -- and that decision is within the
discretion of the district court. In the alternative the
Government argues that even if the district court did commit an
error of law, Rashad is not entitled to relief because it is highly
unlikely he would have obtained a reduction of his sentence for
acceptance of responsibility.
5
A. Standard of Review
As a preliminary matter, the Government urges this court to
review the decision of the district court only for “plain error”
because Rashad “did not ... object to the district court’s ruling on
Alford grounds.” Federal Rule of Criminal Procedure 51(a),
however, provides that “[e]xceptions to rulings or orders of the
court are unnecessary.” All a defendant need do to preserve a
claim of error (and, hence, to obtain the more favorable
“harmless error” review) is inform the court and opposing
counsel of the ruling he wants the court to make and the ground
for so doing; he need not cite the particular case that supports his
position. See United States v. Rapone, 131 F.3d 188, 197 (D.C.
Cir. 1997); United States v. Morgan, 581 F.2d 933, 939 n.16
(D.C. Cir. 1978).
Rashad made his position clear in a pre-hearing submission
to the court and at the evidentiary hearing: He argued that, had
he received effective assistance of counsel, he would have
pleaded guilty to all the charges and consequently would have
received a shorter sentence for having accepted responsibility.
That is sufficient to preserve for review his present claim of
error. See Morgan, 581 F.2d at 939 n.16; see also United States
v. Rivera, 192 F.3d 81, 84 (2d Cir. 1999).*
*
Judge Randolph believes it is inappropriate for the court to consider
Rashad’s argument because Rashad did not present it to this court in
his first appeal. The district court, however, without objection from
the Government, considered Rashad’s argument as within the scope
of our remand and ruled on its merits. Our colleague suggests that is
“of no moment” because the forfeiture rule is meant to conserve
judicial resources. Had the district court rejected Rashad’s argument
on that ground, or had the Government advanced that argument on its
own, Judge Randolph’s view would have more force. Seeing that
neither the district court nor the Government considered Rashad’s
6
B. Ineffective Assistance
On the merits the Government argues, first, the district
court’s ruling is consistent with Alford because the court
concluded not that Rashad could not have pleaded guilty but
rather that, under the circumstances of this case, it would not
have accepted such a plea. And that determination, according
to the Government, should be reviewed only for abuse of
discretion.
The district court is certainly not required to accept every
guilty plea it is tendered, let alone the guilty plea of every
defendant who maintains his innocence; indeed, the district
court has considerable discretion to decide whether a guilty plea
is appropriate in the circumstances of the particular case.
Alford, 400 U.S. at 38 n.11; see, e.g., United States v. Shepherd,
102 F.3d 558, 562–64 (D.C. Cir. 1996) (recognizing timing of
guilty plea and prejudice to co-defendants relevant when
deciding whether to accept guilty plea); United States v.
Preciado, 336 F.3d 739, 743 (8th Cir. 2003) (affirming district
court’s rejection of guilty plea where defendant repeatedly
changed his story, raising doubt about factual basis for plea);
United States v. Severino, 800 F.2d 42, 45–46 (2d Cir. 1986)
(not abuse of discretion for district court to reject guilty plea
where defendant was untruthful in describing events). It is clear
from the record in this case, however, that the district court
argument forfeited, however, we do not believe judicial economy
provides an adequate justification to raise, sua sponte, one party’s
failure to make an argument while ignoring the identical omission by
the opposing party. See United States v. Layeni, 90 F.3d 514, 522
(D.C. Cir. 1996) (Government “waived the waiver argument” by
failing to raise it at sentencing in district court).
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thought it did not have discretion to accept Rashad’s guilty plea.
In response to Rashad’s assertion that he would have pleaded
guilty in order to seek a reduction of his sentence for acceptance
of responsibility, the court stated:
The problem with that position and the problem with
arguing prejudice here is that Mr. Rashad says that he is not
guilty. Therefore, he cannot plead under the law to several
of the counts relating to that gun charge .... [H]e wouldn’t
have been eligible to plead because the Court would not ...
accept a plea to something that he isn’t willing to admit
guilt. [Emphasis supplied.]
Apparently the district court believed that a defendant who
maintains his innocence simply is not permitted to plead guilty,
but that is not the law. See Alford, 400 U.S. at 37. Because the
court thought Rashad was not “eligible to plead” guilty, the
court did not go on to determine whether Rashad in fact would
have made such a plea and whether the court would have
accepted it. That was an error.
C. Prejudice
The Government argues that even if the district court did
err, Rashad was not prejudiced thereby. Federal Rule of
Criminal Procedure 11(b)(3) requires the court, before entering
judgment, to “determine that there is a factual basis for the
plea.” If the defendant proclaims his innocence, however, the
court must go further and determine that there is a “high
probability of conviction” before accepting his guilty plea.
Bruce v. United States, 379 F.2d 113, 119 (D.C. Cir. 1967).
Here, according to the Government, the district court would
likely have rejected Rashad’s plea because the Government’s
evidence with respect to the disputed weapons charges (all
8
dating to September 15, 2000), although “sufficient for
conviction, ... was not strong,” as “there was no videotape or
other forensic evidence supporting” those charges.
The Government’s evidence on those weapons charges,
although it did not persuade the jury of Rashad’s guilt beyond a
reasonable doubt, was not so sparse that it would have been an
abuse of discretion for the district court to have accepted a guilty
plea from the defendant. For example, a government informant
testified at trial that Rashad had personally sold him a firearm in
mid-September, 2000, as charged. We need not rehearse all the
evidence here, however; for we must leave it to the district court
in its discretion to determine whether the evidence was
sufficiently strong to justify an Alford plea.
The Government also argues that, even if Rashad had
offered and the district court had accepted a straight-up guilty
plea, it is highly doubtful the district court would have reduced
Rashad’s sentence on the ground that he had accepted
responsibility for his crimes. Here the Government cites
comment 3 to § 3E1.1 of the Sentencing Guidelines, which
provides: “A defendant who enters a guilty plea is not entitled
to an adjustment under this section as a matter of right.”
Comment 5, on the other hand, reminds us that “[t]he sentencing
judge is in a unique position to evaluate the acceptance of
responsibility,” and for that reason the sentencing judge’s
determination “is entitled to great deference on review.” In this
case, of course, the district court never made that determination
and so the proper course is for us to remand the case for the
district court to determine whether it would have accepted
Rashad’s plea and, if so, whether it also would have reduced his
sentence for having accepted responsibility.
Finally, the Government claims it “likely would have
9
opposed” Rashad’s plea -- let alone his motion for a reduction
of sentence -- and “could well have” filed additional charges
against Rashad, thus “put[ting] the prospect of a ‘straight up’
plea out of reach.” But the Government’s opposition would not
have been dispositive; a reduction for acceptance of
responsibility under § 3E1.1 -- unlike a reduction for substantial
assistance under § 5K1.1, which requires the support of the
Government -- “is directed to the defendant’s affirmative
recognition of responsibility for his own conduct,” as
determined by the district court. Sentencing Guidelines § 5K1.1
cmt. 2.** Meanwhile, the Government’s speculation that it might
have brought additional charges does not bear upon whether
Rashad was prejudiced by his trial counsel’s failure to tell him
he had the option of pleading (or attempting to plead) straight up
to the charges the Government actually brought against him.
III. Conclusion
In sum, the district court erred as a matter of law when it
determined Rashad was not eligible to plead guilty because he
asserted his innocence to some of the charges against him.
Therefore, we remand this case to the district court for further
proceedings consistent with the foregoing opinion.
So ordered.
**
The version of § 3E1.1 in effect when Rashad committed his
offenses permitted the district court to reduce a defendant’s sentence
by three levels for his acceptance of responsibility regardless whether
the Government objected to the reduction of sentence. Under the 2003
amendments to the Sentencing Guidelines, the district court may still
grant a two-level reduction, but the third level may be granted only
“upon motion of the government.”
1
RANDOLPH , Circuit Judge, dissenting: In 2003, when we
heard Rashad’s direct appeal from his criminal conviction, he
gave two, and only two, grounds for his claim of ineffective
assistance of counsel: (1) his attorney underestimated the
strength of the government’s case, and (2) his attorney
misadvised him about the potential sentence he faced. See
United States v. Rashad, 331 F.3d 908, 909 (D.C. Cir. 2003).
Because the factual validity of these contentions was unclear, we
remanded “the record” to the district court for an evidentiary
hearing. 313 F.3d at 912. Under our rules, we therefore
retained jurisdiction over the case. See D.C. CIR. R. 41(b);
United States v. Williams, 754 F.2d 1001, 1002-03 (D.C. Cir.
1985).
The district court fully discharged the duty we imposed on
it. After an extensive hearing, at which both Rashad and his trial
attorney testified, the court found that the attorney correctly
advised Rashad about the strength of the government’s case and
about how much time Rashad might serve if he were convicted.
When the record returned to us, Rashad argued neither of these
grounds. Instead he raised an entirely new one, claiming that his
attorney never told him that if he pleaded guilty to the charges
“straight up,” he might receive a reduced sentence for accepting
responsibility pursuant to § 3E1.1 of the Guidelines. The district
court made no findings about whether Rashad’s trial attorney
ever advised him about § 3E1.1, so my colleagues decide to
send the case back again for findings on this new claim. I would
reject the claim outright because Rashad did not raise it in his
original appeal and because we remanded the record only for
findings on the two claims Rashad has now abandoned.
When “an argument could have been raised on an initial
appeal, it is inappropriate to consider that argument on a second
appeal following remand.” Northwestern Indiana Tel. Co. v.
2
FCC, 872 F.2d 465, 470 (D.C. Cir. 1989). The “rule serves
judicial economy by forcing parties to raise issues whose
resolution might spare the court and parties later remands and
appeals. Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 740
(D.C. Cir. 1995).” Hartman v. Duffey, 88 F.3d 1232, 1236 (D.C.
Cir. 1996). It is of no moment that the government has not
made this argument. As we recognized in Hartman, the rule is
meant to conserve judicial resources, not to confer some right on
the government that it may waive by not arguing the point. See
United States v. Pryce, 938 F.2d 1343, 1348 (D.C. Cir. 1991);
id. at 1351 (Randolph, J., concurring). There is all the more
reason to invoke the remand rule in a case such as this. Our
practice is to allow a defendant, on direct appeal from a criminal
conviction, to claim ineffective assistance of counsel despite the
defendant’s failure to do so in the district court, and to remand
for an evidentiary hearing if the record does not permit
resolution of the claim on appeal. Other circuits would force a
defendant in these circumstances to file a “habeas” petition
under 28 U.S.C. § 2255. See, e.g., United States v. Weaver, 281
F.3d 229, 234 (D.C. Cir. 2002); United States v. Geraldo, 271
F.3d 1112, 1116 (D.C. Cir. 2001). In effect, then, our practice
serves as a substitute for habeas. Congress has imposed severe
limitations on successive habeas petitions. See 28 U.S.C.
§§ 2244(b)(1), 2255; United States v. Vargas, No. 03-3105,
2004 WL 2937252 (D.C. Cir. Dec. 21, 2004). Rashad’s new
ineffective assistance claim is analogous to a successive habeas
petition and it too should be disallowed for similar reasons --
namely, to prevent repetitive litigation and delay. See, e.g.,
Rodwell v. Pepe, 324 F.3d 66, 72 (1st Cir. 2003).
Even if we may reach Rashad’s new claim, I would reject
it. It is no wonder that the district court made no findings on the
question whether Rashad knew his sentence might be reduced
for acceptance of responsibility if he pleaded guilty without a
3
plea deal. That question was not within the scope of our remand
and was not litigated. We remanded the record only for findings
on Rashad’s original ineffective assistance contentions. This is
doubtless why, at the evidentiary hearing, neither Rashad nor his
attorney was ever asked about whether Rashad received advice
regarding acceptance of responsibility. As to whether Rashad
knew he could plead “straight up,” it is clear that he did know
and that his attorney so advised him. Rashad testified that the
government’s final plea offer was for him to plead to the
indictment. When the court asked “The plea was straight up to
the indictment?” Rashad answered “Yes.” A few moments later
Rashad explained that he rejected the offer, “feeling, you know,
why plead to the entire indictment.”
I believe my colleagues also misunderstand the district
court’s findings, delivered orally. The majority opinion quotes
one of the court’s statements and concludes that the court
thought, incorrectly, that a defendant who maintains his
innocence cannot plead guilty. Whatever the court had in mind,
and in context this is far from clear, it had no effect on the
court’s ultimate conclusion that Rashad’s attorney provided
effective assistance. Under Strickland v. Washington, 466 U.S.
668, 688, 692 (1984), a defendant cannot prevail on an
ineffective assistance claim unless he shows not only that
“counsel’s representation fell below an objective standard of
reasonableness,” but also that counsel’s deficiencies were
prejudicial. Before making its statement about the likelihood of
Rashad pleading guilty, the court found that Rashad’s attorney
had in fact advised him correctly about sentencing and the
government’s case. That was enough to reject Rashad’s
ineffective assistance claim. Only as an alternative ruling did
the court add that even if Rashad had received bad advice on
these subjects, he was not prejudiced because he still would not
4
have pleaded guilty.***
For these reasons I respectfully dissent.
***
That is precisely the way Rashad argued his case on remand. His
memorandum of law stated that his “trial counsel committed two
errors in advising Mr. Rashad.” The only alleged errors were those on
which we ordered an evidentiary hearing:
First, he advised Mr. Rashad to go to trial based upon a
negligent mis-assessment of the strength of the Government’s
case on the drug charges. Second, trial counsel advised Mr.
Rashad incorrectly concerning the sentencing that he faced if
convicted at trial.
Defendant’s Memorandum of Law Concerning Ineffective Assistance
of Counsel, at 11. The memorandum mentioned the prospect of
Rashad’s pleading to the indictment “straight up,” not as an
ineffectiveness claim, but as the prejudice he suffered as a result of his
attorney’s alleged “two errors.”