United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 4, 2008 Decided March 6, 2009
Reissued: March 27, 2009
No. 05-3206
UNITED STATES OF AMERICA,
APPELLEE
v.
WILLIE J. MOULING,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00189-01)
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.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese III and Elizabeth
Trosman, Assistant U.S. Attorneys.
Before: SENTELLE, Chief Judge, TATEL, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Appellant challenges his
conviction and sentence on drug and gun offenses, arguing (1)
that the district court’s use of compound voir dire questions
prevented him from learning about possible juror bias; (2) that
the district court committed multiple errors in determining his
sentence; and (3) that he received ineffective assistance of
counsel at trial. Although we have repeatedly expressed our
concerns about compound voir dire questions, in this case we
are limited to reviewing the district court’s actions for plain
error, a showing that appellant fails to make. Nor have we
any basis for vacating the sentence: appellant’s Apprendi
claim fails under plain error review, the sentence is
reasonable, and appellant points to no evidence that the
district court misunderstood its sentencing authority. In
keeping with our general practice, however, we remand to the
district court for an evidentiary hearing on appellant’s
ineffective assistance of counsel claims because the trial
record does not conclusively show whether appellant is
entitled to relief.
I.
The case against appellant Willie Mouling stems from
cocaine and a handgun found in a parka abandoned by a
suspect who fled from police after having been stopped in
connection with a hit-and-run accident. Although never
charged with the hit-and-run that originally precipitated the
investigation, Mouling was charged with and tried for
possession of cocaine base with intent to distribute, 21 U.S.C.
§ 841, using or carrying a firearm during a drug-trafficking
offense, 18 U.S.C. § 924(c), and unlawful possession of a
firearm and ammunition by a convicted felon, 18 U.S.C. §
922(g)(1). At trial Mouling’s defense centered on a theory of
mistaken identity, namely that the police chased a different
3
individual, the owner of the drug- and gun-containing parka,
and ended up arresting Mouling instead.
Events leading up to the chase began when D.C.
Metropolitan Police Department Officer Seth Anderson
responded to the hit-and-run report and interviewed a witness
who described the driver as a black male with a slim build,
wearing black pants and a black parka with gray fur around
the hood. Canvassing the area, Anderson saw an individual
matching this description climbing into a parked blue Isuzu
SUV. Anderson blocked the SUV with his squad car and
questioned the driver. At trial Anderson testified that his
encounter with the suspect lasted one to one and a half
minutes. Anderson further testified that the individual
produced a Virginia driver’s license bearing the name Willie
Mouling, though a defense witness testified that the person he
saw talking to an officer next to the SUV was not Mouling,
but rather the owner of the SUV, whom the witness had
regularly seen around the neighborhood. Other defense
evidence indicated that Mouling drove an Accord, not an
SUV.
When Anderson told the suspect that he was investigating
a hit-and-run, the suspect became nervous and began reaching
into his pockets. Instructed by Anderson to remove his hands
from his pockets, the individual fled on foot, managing to slip
out of his parka when Anderson tried to grab him. Dropping
the parka, Anderson gave chase. The path of the chase was
disputed at trial, with Anderson’s description of the route
differing somewhat from another officer’s and from
measurements of the area taken by a defense investigator
indicating that the path Anderson described was actually
blocked by a fence. According to Anderson, he never lost
sight of the suspect and remained within fifteen feet of him
throughout the chase, which he said lasted less than a minute.
4
In the end Anderson arrested Mouling in an alley behind a
neighboring street.
Returning to the vehicles, Anderson retrieved the
abandoned parka and discovered a loaded handgun inside.
Police also found three “cookies”—two of a white substance
and one of a cream-colored substance—in the coat, each in its
own plastic baggie. Neither the gun nor the bags yielded
usable fingerprints.
Anderson testified that Mouling twice signaled his
ownership of the parka by referring to it as “my” coat and by
stating in regard to the charges he was facing, “well, you
know what’s in the coat.” On cross-examination, however,
Anderson acknowledged that when Mouling first saw the
parka after his arrest, he denied it was his. Two of Mouling’s
neighbors testified they saw him that day wearing a black
quilted jacket with no hood, although they acknowledged they
had no idea how many coats Mouling owned. Mouling’s
booking photo showed him wearing a black quilted jacket
with a collar but apparently without a hood, and the inventory
of his clothing listed a black “jacket,” which the government
suggests he could have obtained from a family member or a
“sympathetic police officer,” Appellee’s Br. 22.
The jury convicted Mouling on all three counts. Given
Mouling’s criminal history category of IV, the presentence
report proposed a sentencing guidelines range of 168–210
months for drug possession based on a drug quantity of 50–
150 grams of cocaine base, plus a 60-month mandatory
sentence for using or carrying a firearm. The government
requested a 228-month sentence, which reflected the low end
of the guidelines range. Because Mouling’s trial counsel died
in a car accident before sentencing, replacement counsel
represented Mouling at sentencing.
5
The trial court sentenced Mouling to 228 months: 168
months for drug possession and 120 months for gun
possession to be served concurrently, and a consecutive 60-
month sentence for using or carrying a firearm during a drug-
trafficking offense. The trial court also ordered concurrent
terms of supervised release: five years for drug possession,
three years for firearm use, and two years for gun possession.
Mouling appeals, objecting to the court’s conduct of voir
dire in selecting his jury, challenging several aspects of his
sentencing, and arguing that he received ineffective assistance
of counsel at trial. We address each challenge in turn.
II.
We begin with Mouling’s challenge to the district court’s
use of compound voir dire questions. Because we have
reviewed this particular district court’s voir dire questioning
multiple times, we offer only a brief description of the
practice. As we explained in United States v. West, 458 F.3d
1 (D.C. Cir. 2006), United States v. Littlejohn, 489 F.3d 1335
(D.C. Cir. 2007), and United States v. Harris, 515 F.3d 1307
(D.C. Cir. 2008), the district court’s practice was to ask
potential jurors several two-part questions, instructing them to
listen to both parts of the question before responding. The
first part of the question asked whether jurors had a certain
background characteristic or experience, and the second part
asked whether in light of that characteristic or experience they
thought they would have trouble being impartial. Only if a
potential juror would answer “yes” to both parts of the
question was she to raise her hand in response. If the answer
to either part of the question was “no,” the potential juror
wasn’t to respond at all. For example, the first part of one
question asked whether any potential juror or any close family
member or friend was “currently or previously employed by
any law enforcement agency.” Trial Tr. at 58 (Sept. 21,
6
2004). The district court then listed various organizations that
he said qualify as law enforcement agencies, warned the
potential jurors not to raise their hands until he asked the
second part of the question, and then asked: “As a result of
that experience, do you believe that you, you personally
would be unable to be fair and impartial to both sides if
selected as a juror in this case?” Id. at 58–59. In addition to
the law enforcement employment question, the district court
posed compound questions on seven other topics: whether any
prospective jurors knew each other or had been involved in
criminal defense, studied law, served on a grand jury, served
on a petit criminal jury, participated in a crime-prevention
group, or had been the victim of any crime.
We have previously expressed “deep reservations about
[the district court’s] compound questions.” Littlejohn, 489
F.3d at 1343. As we explained in West, the problem with
compound questions is that they “prevent[] the parties from
learning the factual premise of the first part of the question,
relying instead upon the juror’s self-assessment of his or her
impartiality.” 458 F.3d at 10–11. Here, for example, if a
potential juror had actually been employed by a law
enforcement agency but thought she could nonetheless be
impartial, the question format would prevent the parties from
learning about and inquiring into the juror’s law enforcement
background altogether.
In all three of our prior cases, because defense counsel
timely objected to the compound questions, we reviewed the
conduct of voir dire for abuse of discretion, explaining that
reversal was warranted if the court abused its discretion and
there was substantial prejudice to the accused. See, e.g.,
Littlejohn, 489 F.3d at 1342. In West and Harris, although we
found the compound questions “troubling” and cautioned
against their use, Harris, 515 F.3d at 1311, we nonetheless
7
saw no abuse of discretion because the defendants had other
means to learn the necessary information about potential
jurors, because their cases did not turn on police officer
credibility, and because the evidence against them was
otherwise strong. Id. at 1313; West, 458 F.3d at 8–9. By
contrast, in Littlejohn, where police officer credibility was
central to conviction and the evidence of guilt was otherwise
not overwhelming, we concluded that the compound
questions violated the defendant’s Sixth Amendment right to
an impartial jury and vacated the conviction. 489 F.3d at
1346.
Unlike in Harris, West, and Littlejohn, Mouling’s trial
lawyer failed to object at voir dire to the compound questions,
so our review is far more limited. See United States v.
Caldwell, 543 F.2d 1333, 1345 (D.C. Cir. 1975); FED. R.
CRIM. P. 52(b). Under plain error review, we may reverse
only if: “(1) there is error (2) that is plain and (3) that affects
substantial rights, and (4) we find that the error ‘seriously
affects the fairness, integrity or public reputation of judicial
proceedings.’” United States v. Baugham, 449 F.3d 167, 183
(2006) (quoting United States v. Olano, 507 U.S. 725, 732
(1993)).
Mouling argues that his case resembles Littlejohn, where
we held that the compound questions posed in that case
violated the Sixth Amendment. According to Mouling, the
law is therefore crystal clear, and the court committed plain
error when it employed such questions in empaneling his jury.
As the government points out, however, Littlejohn had not
been decided at the time of Mouling’s trial. According to the
government, any error in using compound questions could
therefore not have been “plain.” In response, Mouling cites
Johnson v. United States, 520 U.S. 461, 467–68 (1997), for
the proposition that the plainness of an error is assessed as of
8
the time of appeal, not as of the time of trial. Since Littlejohn
was issued prior to this appeal, Mouling insists that the
district court’s error was plain.
Mouling’s reliance on Johnson is misplaced. In Johnson
“the law at the time of trial was settled and clearly contrary to
the law at the time of appeal.” 520 U.S. at 468. In such
circumstances, the Court explained, “it is enough that an error
be ‘plain’ at the time of appellate consideration.” Id. Here,
by contrast, the law was far from settled at the time of trial.
We had yet to decide West, Littlejohn, or Harris, and no other
D.C. Circuit precedent had clearly held that compound voir
dire questions constitute reversible error.
In circumstances like those we face here—where the law
is unsettled at the time of trial but settled at the time of
appeal—whether we assess error as of the time of trial or the
time of appeal remains an open question in this circuit.
Baugham, 449 F.3d at 183 (recognizing that the Supreme
Court has left the question “unresolved” but not deciding the
question for this circuit). We have twice declined to reach the
question because in those cases, even assuming any error was
plain, the defendants failed to show that the error affected
their substantial rights as required under the plain error test’s
third element. See id.; United States v. Johnson, 437 F.3d 69,
74 (D.C. Cir. 2006). Mouling, however, presents a closer
case. Like in Littlejohn, officer credibility was crucial to
Mouling’s conviction. The evidence on the central
question—whether Mouling was the individual stopped by
Officer Anderson and thus the owner of the parka—came
primarily, indeed almost entirely, from police officer
testimony. Officer Anderson identified Mouling as the SUV
driver he stopped for questioning and testified that he never
lost sight of the suspect during the chase and that Mouling
made comments indicating he owned the parka. That
9
testimony was contradicted not only by a defense witness who
saw Anderson speaking to someone other than Mouling at the
SUV and by defense evidence indicating the chase route was
blocked by a fence, but also by another officer whose
description of the chase route differed from Anderson’s. To
convict Mouling, then, jurors had to credit Officer Anderson’s
version of events, making it all the more important for voir
dire to uncover any juror’s tendency to give undue weight to
officer testimony. Because of the similarities between
Mouling’s case and Littlejohn, where we found a
constitutional violation, whether the error affected Mouling’s
substantial rights presents a close question. As a result, we
must now resolve the question we have previously been able
to avoid: whether error can be “plain” when the law, though
unsettled at trial, becomes clear by the time of appeal.
After the Supreme Court issued its decision in Johnson,
the circuits have split on this question. See generally HARRY
T. EDWARDS & LINDA A. ELLIOTT, FEDERAL COURTS
STANDARDS OF REVIEW: APPELLATE COURT REVIEW OF
DISTRICT COURT DECISIONS AND AGENCY ACTIONS 92 (2007).
The Eleventh assesses error as of the time of appeal, United
States v. Smith, 459 F.3d 1276, 1283 (11th Cir. 2006), while
the Ninth does so as of the time of trial, United States v.
Turman, 122 F.3d 1167, 1170 (9th Cir. 1997). We agree with
the Ninth Circuit that Johnson represents an exception to the
general rule that error is assessed as of the time of trial, an
exception Johnson carved out because when the law is settled
at the time of trial, “objections are pointless,” id. at 1170, and
“[m]easuring error at the time of trial ‘would result in
counsel’s inevitably making a long and virtually useless
laundry list of objections to rulings that were plainly
supported by existing precedent,’” id. (quoting Johnson, 520
U.S. at 468). By contrast, where the law is unsettled at trial,
objections are far from pointless—they serve a valuable
10
function, alerting the district court to potential error at a
moment when the court can take remedial action. Thus the
interest in requiring parties to present their objections to the
trial court, which underlies plain error review, applies with
full force. We therefore hold that where, as here, the law was
unsettled at the time of trial but becomes settled by the time of
appeal, the general rule applies, and we assess error as of the
time of trial.
Because at the time of Mouling’s trial, no clear circuit
precedent established the impropriety of compound voir dire
questions in circumstances similar to Mouling’s case, any
error in employing such questions cannot have been plain.
See United States v. Perry, 479 F.3d 885, 893 n.8 (D.C. Cir.
2007) (noting that “absent precedent from either the Supreme
Court or this court, [an] asserted error falls far short of plain
error” unless it violates a legal norm that is “absolutely clear
(for example because of the clarity of a statutory provision or
court rule)” (internal quotation marks and ellipses omitted)).
We therefore have no need to reach the plain error test’s
remaining two elements: whether the voir dire affected
Mouling’s substantial rights or “seriously affect[ed] the
fairness, integrity or public reputation of judicial
proceedings,” Olano, 507 U.S. at 732 (internal quotation
marks omitted).
III.
Appealing his sentence, Mouling argues that the district
court committed Apprendi error when it sentenced him
without a jury finding on the requisite quantity of drugs; that
it based its sentence on an unreasonable rationale; and that it
failed to recognize its authority to consider the sentencing
guidelines’ disparity between crack and powder cocaine.
11
We start with Mouling’s argument that the district court
erred in sentencing him based on a drug quantity that the jury
never found beyond a reasonable doubt. Because Mouling’s
counsel failed to object on this ground at sentencing, our
review is once again limited to plain error. See United States
v. Johnson, 331 F.3d 962, 964 (D.C. Cir. 2003).
Under Apprendi v. New Jersey, the jury, not the court,
must find any facts “that increase the prescribed range of
penalties to which a criminal defendant is exposed.” 530 U.S.
466, 490 (2000) (internal quotation marks omitted). Such
facts include drug quantity under 21 U.S.C. § 841(b)(1),
which provides different mandatory sentence ranges based on
the quantity of drugs involved. United States v. Fields, 242
F.3d 393, 395 (D.C. Cir. 2001). Under section 841(b)(1)(A),
possession of fifty grams or more of cocaine base carries a
penalty range of ten years to life; under section 841(b)(1)(B),
possession of five grams or more carries a range of five to
forty years; and under section 841(b)(1)(C), possession of any
amount carries a penalty of up to twenty years.
Mouling argues that because the court instructed the jury
only that it had to find beyond a reasonable doubt that he
possessed a “detectable amount” of cocaine base, Trial Tr. at
38 (Sept. 28, 2004), and omitted any reference to “50 grams
or more,” it should have sentenced him under subsection (C)
(detectable amount) rather than under subsection (A) (fifty
grams or more). The government points out that although the
jury instructions referred to only a “detectable amount,” the
verdict form included the necessary quantity. Therefore,
according to the government, by checking “guilty” on the
verdict form, the jury actually found that Mouling possessed
fifty grams or more, eliminating any Apprendi error. We
disagree.
12
Including the quantity in the verdict form cannot cure the
omission from the jury instructions. We presume that juries
follow the instructions they are given, see Richardson v.
Marsh, 481 U.S. 200, 211 (1987), and here, the instructions
mentioned only a “detectable amount.” Properly following
instructions, the jury would have been required to find
Mouling guilty if it concluded that he possessed only a
detectable amount, regardless of what the verdict form said.
The court therefore committed error in sentencing Mouling
under subsection (A), and under Apprendi and Fields such
error was plain at the time of trial.
Moving on, then, to the remaining elements of the plain
error inquiry, we must consider whether the error affected
substantial rights and “seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings.” Olano,
507 U.S. at 732 (internal quotations omitted). In United
States v. Webb, the district court had improperly imposed a
sentence under subsection (A), but we nonetheless held that
this Apprendi error did not affect substantial rights because
the actual sentence, like Mouling’s, fell below the statutory
maximum available under subsection (C). 255 F.3d 890, 898
(D.C. Cir. 2001). Mouling argues that Webb no longer
controls because United States v. Booker, 543 U.S. 220
(2005), has made the sentencing guidelines advisory.
According to Mouling, under a mandatory guidelines regime,
there is no effect on substantial rights because the defendant
would have received the same sentence based on the
guidelines’ drug quantity table under either subsection (A) or
subsection (C), but this is no longer true under the advisory
guidelines. We needn’t decide whether Booker changes our
analysis under the plain error test’s third element, however,
because Mouling cannot show that his sentence meets the
test’s fourth element—that the error “seriously affects the
fairness, integrity or public reputation of judicial
13
proceedings,” Olano, 507 U.S. at 732 (internal quotation
marks omitted).
In Webb, we held that a sentence based on an Apprendi
error did not satisfy the plain error test’s fourth element when
the evidence of the higher, subsection (A) drug quantity was
overwhelming and uncontroverted. 255 F.3d at 901–02; see
also United States v. Cotton, 535 U.S. 625, 633–34 (2002) (no
plain error in failure to include drug quantity in indictment
where evidence was “overwhelming” and “essentially
uncontroverted”). Attempting to distinguish Webb, Mouling
(1) questions the strength of the evidence of drug quantity and
(2) suggests that the difference in color among the three
“cookies” found in the parka could create a reasonable doubt
that all three cookies contained cocaine base, which could
reduce the total weight to below the fifty-gram mark.
As to the first point, Mouling acknowledges that the
chemist’s report found a total weight of 51.7 grams, but
argues that the record contains no evidence as to the accuracy
of the chemist’s measurements and points out that those
measurements were contradicted by the government’s own
expert. He also emphasizes that 51.7 grams is close to the
fifty-gram breakpoint between subsection (A) and subsection
(B), rendering more significant any doubt as to the accuracy
of the weighing method. Mouling’s efforts to undermine the
strength of the evidence are unpersuasive. Although it is true
that the government never demonstrated the accuracy of the
chemist’s measurements, nothing in the record suggests that
the measurements were in any way inaccurate. And although
the government expert estimated that the baggies represented
“three half-ounce bags,” Trial Tr. at 61 (Sept. 23, 2004), this
estimate, far from contradicting the chemist’s measurements
(as Mouling suggests), was itself based on those
measurements. See Trial Tr. at 59 (Sept. 23, 2004) (expert
14
testimony noting the measured weight of 51.7 grams and
concluding that each bag contained “approximately 17 grams
each, which is just slightly over a half an ounce on each
bag”). To be sure, this case involves quantities close to the
fifty-gram mark, but the amount of drugs recovered need not
vastly exceed the statutory amount for evidence of quantity to
be “overwhelming.” The government produced physical
evidence—the actual cookies themselves—and presented
laboratory analyses to establish quantity. “This was not a
case, for example, in which the government recovered a
quantity of drugs less than the 50-gram statutory threshold,
and thus had to rely on ‘vague testimonial’ rather than
physical evidence to prove that the threshold was met.”
United States v. Pettigrew, 346 F.3d 1139, 1147 (D.C. Cir.
2003) (quoting United States v. Fields, 251 F.3d 1041, 1045
(D.C. Cir. 2001)).
As to Mouling’s second point, despite his efforts on
appeal, the evidence of drug quantity, as in Webb, was
“essentially uncontroverted,” Cotton, 535 U.S. at 633. See
also Johnson, 331 F.3d at 969 (finding failure to submit drug
quantity to jury was not plain error when defendant “offered
the jurors no scenario under which they could have convicted
him of unlawful possession with intent to distribute cocaine
base, yet found that the quantity involved was less than 50
grams”). Neither Mouling’s trial counsel nor the lawyer who
represented him at sentencing questioned the validity of the
weight listed in the chemist’s report or in any other way
suggested that Mouling might actually have possessed less
than fifty grams. Nor does Mouling now give us any reason
to doubt the chemist’s measurements. For the first time,
Mouling suggests an alternative “fake cookie” theory, which
he contends could have created reasonable doubt as to the
total weight of cocaine base. Mouling suggests that because
the chemist tested samples from all three cookies mixed
15
together, the test couldn’t determine whether each individual
cookie contained cocaine base. If only the two white cookies,
but not the cream-colored cookie, actually contained cocaine,
the total weight would have fallen within the range applicable
to subsection (B) (five grams or more) rather than exceeding
fifty grams under subsection (A). To be sure, we have
suggested that presenting on appeal a plausible scenario under
which a jury might have convicted the defendant but still
found he possessed less than the requisite quantity of drugs
could inform the analysis under the plain error test’s fourth
element. See Webb, 255 F.3d at 902. But Mouling presented
neither evidence nor argument at trial, sentencing, or on
appeal that the difference in cookie color on which his theory
depends is in fact linked to the presence or absence of
cocaine. Indeed, despite the color difference, the
government’s expert testified that the three cookies “appear[]
to be . . . crack cocaine.” Trial Tr. at 57 (Sept. 23, 2004).
Mouling’s unsubstantiated theory, presented for the first time
on appeal, is thus insufficient to seriously affect the fairness,
integrity, or public reputation of judicial proceedings.
Mouling makes an additional related argument: that the
same Apprendi error requires remand for resentencing on the
term of supervised release. In imposing a five-year term of
supervised release, the district court expressly tracked the
mandatory minimum under section 841(b)(1)(A). Section
841(b)(1)(C), under which Mouling should have been
sentenced, carries no mandatory minimum. In United States
v. Graham, we held on plain error review that this exact error
affected the defendant’s substantial rights, even though a five-
year term would have been permissible, albeit not mandatory,
under section 841(b)(1)(C). 317 F.3d 262, 273–75 (D.C. Cir.
2003). Although remanding for resentencing on the term of
supervised release, Graham apparently never considered the
plain error test’s fourth element, which as demonstrated
16
above, is fatal to Mouling’s Apprendi claim. Mouling’s
challenge to the supervised release term therefore fails for the
same reason as his challenge to the term of imprisonment.
Mouling next objects to the way in which the district
court considered his decision to proceed to trial rather than
accept a plea deal. Starting from the premise that the drug
charge carried a minimum of ten years and the firearm charge
a minimum of five years, the district court reasoned that
Mouling should receive a heftier sentence than the fifteen
years he would have received had he pled guilty. When the
government pointed out that it had actually offered Mouling a
substantially lower sentence, the district court declined to
inquire into the details of the actual deal, stating, “Well, of
course, the court doesn’t get in the middle of the plea
negotiation process.” Sent’g Tr. at 10 (Oct. 31, 2005).
Although the district court declined to consider the actual
plea deal the government originally offered, Mouling has
given us no basis for concluding that the court acted
unreasonably in focusing instead on the sentence Mouling
would have gotten had he pled guilty to all charges for which
he was eventually convicted. We read the district court
merely to have recognized that a fifteen-year sentence would
have been at the low end of the guidelines range Mouling
would have received had he been eligible for the acceptance
of responsibility adjustment and to have denied Mouling the
benefit of that adjustment. The district court’s decision to
impose a within-guidelines sentence absent acceptance of
responsibility was reasonable. Although the district court
wouldn’t have erred had it considered the actual plea deal, it
was not required to do so, nor did it base the sentence on any
clearly erroneous factual findings. Given that the district
court correctly calculated Mouling’s guidelines range, treated
the guidelines as advisory, considered the required 18 U.S.C.
17
§ 3553(a) factors, and explained its reasoning adequately to
permit appellate review, it committed no procedural error.
See Gall v. United States, 128 S. Ct. 586, 597–98 (2007).
Finally, Mouling urges us to remand for resentencing in
light of Kimbrough v. United States, which confirms that
under the advisory guidelines, a district court may sentence
below the applicable guidelines range in order to account for
the sentencing disparity between powder and crack cocaine,
128 U.S. 558, 575 (2007). At sentencing, Mouling’s counsel
urged the court to consider this disparity and reduce
Mouling’s sentence accordingly. Given the district court’s
failure to expressly address this point, Mouling thinks that the
court may have misunderstood its authority to consider the
disparity and that remand is necessary to allow the court to do
so now.
We generally remand for reconsideration only upon some
record showing that the district court misunderstood its
sentencing authority. See United States v. Godines, 433 F.3d
68, 70 (D.C. Cir. 2006) (refusing to remand where nothing in
the record rebutted “the presumption ‘that the district court
knew and applied the law correctly.’” (quoting United States
v. Ayers, 428 F.3d 312, 315 (D.C. Cir. 2005))). Here,
Mouling’s counsel strenuously argued that the court should
consider the crack-powder disparity. Although the
government insisted that the court lacked authority to do so,
the record contains no indication that the district court agreed
with the government or otherwise misapprehended its
authority. To the contrary, the court repeatedly noted the
advisory nature of the guidelines. Although Mouling now
argues that a presumption that the district court knew and
applied the law correctly is unjustified where, as here, the
court was silent as to its view on the matter and the law is
“completely up in the air,” Appellant’s Reply Br. 20, Mouling
18
concedes that at the time of sentencing in this case some
district courts were permissibly considering the disparity.
The law therefore was hardly so inscrutable that a district
court, particularly one that clearly understood the advisory
nature of the guidelines, could not be presumed to follow it
correctly. Remand on this ground is therefore unwarranted.
IV.
This brings us finally to Mouling’s ineffective assistance
of counsel claim. For Mouling to succeed, he “must show
two things: that his lawyer made errors ‘so serious that
counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment,’ and that counsel’s
deficient performance was prejudicial, i.e., that there is a
‘reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.’” United States v. Gaviria, 116 F.3d 1498, 1512
(D.C. Cir. 1997) (citation omitted) (quoting Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984)).
In this circuit, when an appellant makes an ineffective
assistance of counsel claim for the first time on appeal, we
generally remand for “a fact-finding hearing, at which the
district court can explore ‘whether alleged episodes of
substandard representation reflect the trial counsel’s informed
tactical choice or a decision undertaken out of ignorance of
the relevant law.’” United States v. Fennell, 53 F.3d 1296,
1303 (D.C. Cir. 1995) (quoting United States v. Cyrus, 890
F.2d 1245, 1247 (D.C. Cir. 1989)), modified on reh’g, 77 F.3d
510 (D.C. Cir. 1996). We have recognized two exceptions to
this general practice: “when the trial record alone
conclusively shows that the defendant is entitled to no relief,”
and the “rare exception when the trial record conclusively
shows the contrary.” Fennell, 53 F.3d at 1303–04.
19
Mouling makes six arguments in support of his
ineffective assistance of counsel claim: that defense counsel
(1) failed to advise him of the government’s offer of a five-
year sentence in exchange for a guilty plea; (2) failed to
object to the compound questions at voir dire; (3)
unnecessarily introduced a police report containing prejudicial
hearsay and failed to call two defense witnesses who would
have testified about the identity of the hit-and-run suspect; (4)
misled him into believing that he was bound by his earlier
decision not to testify; (5) failed to renew the motion for
judgment of acquittal despite the insufficient evidence of drug
quantity; and (6) failed to make adequate inquiries into
whether jury deliberations were affected by a juror who asked
to be excused due to her belief that she observed defense
counsel improperly communicating with a witness.
We need look no further than Mouling’s first
allegation—that his counsel failed to advise him of the
government’s plea offer—to agree that remand is necessary.
In United States v. Gaviria, we remanded for an evidentiary
hearing when defense counsel gave the defendant incorrect
information about the length of sentence offered by the
government in exchange for a guilty plea. 116 F.3d at 1512,
1514. We indicated that the hearing should address whether
the defendant “would have taken the Government’s plea offer
had he known of his true [sentencing] exposure.” Id. at 1514.
Similarly, Mouling claims that his counsel informed him only
of a fifteen-year plea offer, although the government had also
offered a five-year deal. The government argues that Mouling
cannot have been prejudiced by counsel’s failure to inform
him of the deal because he learned of the plea offer when the
prosecutor mentioned it on the record in his presence. But the
prosecutor’s on-the-record reference to the offer identified
only the statutory provision to which the government would
have allowed Mouling to plead, not the sentencing exposure
20
that would have flowed from such a plea. As in Gaviria,
then, an evidentiary hearing is needed to evaluate whether
Mouling knew the details of the plea offer and whether there
was a reasonable probability that he would have accepted the
offer had counsel properly informed him of it.
Given that we must remand for an evidentiary hearing on
this claim, we shall also leave it to the district court to
consider Mouling’s other ineffective-assistance allegations in
the first instance.
V.
While otherwise rejecting Mouling’s challenges, we
remand to the district court for an evidentiary hearing on his
ineffective assistance of counsel claims.
So ordered.