United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided June 9, 2009
No. 08-3017
UNITED STATES OF AMERICA,
APPELLEE
v.
FRANK BERKELEY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 06cr00208-01)
Billy L. Ponds filed a brief for appellant. Frank Berkeley,
pro se, filed supplemental briefs for appellant.
Jeffrey A. Taylor, U.S. Attorney at the time the brief was
filed, and Roy W. McLeese III, Mary B. McCord, and J.P.
Cooney, Assistant U.S. Attorneys, were on the briefs for
appellee.
Before: GARLAND and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: Frank Berkeley agreed to plead
guilty to a single count of distributing cocaine base. In
exchange, the government agreed to drop a second count and to
ensure that Berkeley would not be prosecuted for possession of
a gun and drugs found at the scene of his arrest. Before
sentencing, Berkeley moved to withdraw his plea, arguing that
his lawyer failed to inform him of an entrapment defense
because of a conflict of interest, and that the lawyer’s advice
concerning his eligibility for early release constituted ineffective
assistance of counsel. After an evidentiary hearing, the district
court denied the motion and sentenced Berkeley to 169 months
in prison. On appeal, Berkeley contends that the denial of his
motion was an abuse of discretion, and that the imposition of his
sentence was flawed. We reject these contentions and affirm the
judgment of the district court.1
I
On August 2, 2005, Harold Holden called Berkeley to
inquire about purchasing approximately 62 grams of cocaine
base (“crack”). Berkeley knew Holden to be the father of
Berkeley’s girlfriend, but did not know that Holden was also a
government informant. Moments after receiving Holden’s call,
Berkeley met him in the 1000 block of 44th Street, N.E. in
Washington, D.C., and exchanged approximately 62 grams of
crack for $1900 in cash. The transaction was video- and audio-
taped by agents of the Drug Enforcement Administration
(DEA).
On September 21, 2005, Berkeley contacted Holden
regarding an additional transaction for a similar quantity of
1
This case was considered on the record from the United States
District Court for the District of Columbia and on the briefs filed by
the parties. See FED. R. APP. P. 34(a)(2); D.C. CIR. R. 34(j).
3
crack. The two met in the 1700 block of Benning Road, N.E.,
where Holden introduced Berkeley to an undercover agent.
Berkeley gave the agent approximately 62 grams of crack in
exchange for $1700. The DEA again taped the transaction. As
Berkeley conceded before the district court, “the videotapes and
audiotapes unequivocally identified Berkeley as the person
involved in both transactions.” Def.’s Post-Hr’g Br. 1.
Based on these two transactions, a federal grand jury in the
District of Columbia returned a two-count indictment, charging
Berkeley with unlawful distribution of 50 grams or more of
cocaine base in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(iii). An arrest warrant was issued, and on July 19,
2006, Berkeley was arrested outside his residence in Landover
Hills, Maryland, as he attempted to enter a car registered to his
stepfather. During the search incident to his arrest, agents found
approximately 31 grams of suspected crack in Berkeley’s
pocket, as well as a 9mm handgun and $91,980 in cash in the
vehicle.
Attorney Douglas Wood was Berkeley’s first lawyer in the
U.S. District Court, and he negotiated a plea agreement on
Berkeley’s behalf. Wood had represented Berkeley in three
previous felony cases, two of which were dismissed and one of
which resulted in misdemeanor convictions for drug possession.
In a fourth case in 2000, Berkeley faced Maryland drug charges
together with co-defendant Dennis Butler. In that case, Wood
represented Butler while another attorney represented Berkeley.
On September 29, 2006, following a plea hearing under
Rule 11 of the Federal Rules of Criminal Procedure, Berkeley
pled guilty to Count One of the indictment. In return for the
plea, the government agreed to dismiss the remaining count. It
also pledged to secure declination letters from the Maryland
State’s Attorney’s Office and the United States Attorney’s
4
Office for the District of Maryland, agreeing not to prosecute
Berkeley for the gun and drugs found at the time of his arrest.
Plea Agreement ¶ 5.
The parties stipulated that a sentence within the applicable
U.S. Sentencing Guidelines range would be reasonable in light
of the statutory sentencing factors. Id. ¶ 10. The government
agreed that a 3-level decrease in Berkeley’s Guidelines offense
level would be appropriate, pursuant to U.S.S.G. § 3E1.1,
“[a]ssuming [Berkeley] clearly demonstrates acceptance of
responsibility” for his offense. Id. ¶ 9. The agreement expressly
reserved the government’s right “to seek denial of the
adjustment for acceptance of responsibility . . . should
[Berkeley] move to withdraw [his] guilty plea after it is
entered.” Id. ¶ 11.
On February 2, 2007, after replacing Wood as counsel,
Berkeley moved to withdraw his guilty plea pursuant to Federal
Rule of Criminal Procedure 11(d). His principal contention was
that Wood, because of a conflict of interest, had failed to advise
him that he had an entrapment defense. Berkeley also
contended that Wood had wrongly advised him that he would be
placed in a Bureau of Prisons (BOP) drug treatment program
that would allow his release from prison a year early.
The district court held an evidentiary hearing to address
Berkeley’s claims. According to Berkeley’s testimony, Holden
had sent him a letter demanding that he take part in the two drug
transactions and threatening bodily harm to Berkeley and his
family if he did not comply. This threat scared Berkeley, as
Holden was “three times his size,” Mot. Hr’g Tr. 16 (Aug. 9,
2007), and it was because of this threat from a government
informant that Berkeley engaged in the drug deals. Berkeley
testified that, although he told Wood about the letter, Wood said
that Berkeley could not win the case and should agree to the
5
government’s plea offer. Berkeley further maintained that the
reason Wood did not advise him that he had an entrapment
defense was that such a defense would have required Wood to
withdraw from the representation. According to Berkeley, the
government would have attempted to counter the entrapment
defense by showing that he was predisposed to commit the
crime -- and would have done so by calling for the testimony of
the co-defendant in his 2000 drug case, Butler, whom Wood had
represented.
Wood had a different account of his representation of
Berkeley. He testified that Berkeley “never told [him] he had
[been] threatened by Mr. Holden,” and that he “was not aware
of any letter from Mr. Holden to Mr. Berkeley.” Id. at 123.
Faced with a strong case against his client and what he assessed
as an attractive offer from the government, Wood advised
Berkeley to accept the plea agreement. In so doing, however, he
warned Berkeley that he faced at least a 10-year mandatory
minimum sentence. Wood said that he made no promises as to
what the ultimate sentence would be, but that he advised
Berkeley that he “could get maybe . . . six months to a year off
as a result of a drug treatment program while incarcerated” if
“the court recommended a drug treatment program and he was
accepted” into it. Id. at 115. As Wood explained on the record
at Berkeley’s plea hearing, he also warned Berkeley that,
because he was not a U.S. citizen, his conviction could result in
deportation, although “[t]here [was] no INS detainer” at the
time. Plea Hr’g Tr. 6 (Sept. 29, 2006).
On October 16, 2007, the district court denied Berkeley’s
motion. United States v. Berkeley, 515 F. Supp. 2d 159 (D.D.C.
2007). The court credited Wood’s testimony that Berkeley had
never informed Wood of Holden’s letter, and hence that Wood
had no reason to believe that Berkeley had an entrapment
defense. Wood’s advice to plead guilty, the court found, was
6
based on his judgment that “[g]iven the strength of the
Government’s case, and the Defendant’s prior drug activities,
. . . trial was not in the Defendant’s best interest because of the
heavy sentence he would most probably receive.” Id. at 163.
The court also found that, although Wood advised Berkeley that
early release was possible if BOP placed him in a drug treatment
program, he made no “promises that this would occur or that this
was a statutory entitlement.” Id. at 165.
The case then proceeded to sentencing. The U.S. Probation
Office prepared a Presentence Investigation Report (PSR) that
initially calculated Berkeley’s total offense level as 34 and
placed him in criminal history category III. PSR at 21. The
calculation was based on a base offense level of 30, see U.S.S.G.
§ 2D1.1(c)(5), a 2-level enhancement for obstruction of justice,
see id. § 3C1.1, and an additional 2-level enhancement for
possession of a weapon, see id. § 2D1.1(b)(1). PSR at 6. The
PSR did not incorporate a reduction for acceptance of
responsibility because Berkeley had moved to withdraw his
guilty plea, and because an enhancement for obstruction of
justice is generally inconsistent with a reduction for acceptance
of responsibility. See id. (citing U.S.S.G. § 3E1.1 cmt. n.4).
At the February 12, 2008, sentencing hearing, both parties
agreed that the enhancement for possession of a weapon was
inappropriate and that Berkeley’s Guidelines level was at most
32. Berkeley argued for an additional 3-level reduction for
acceptance of responsibility, but the district court rejected that
argument. It found that “[t]he motion to withdraw a guilty plea
in and of itself is a statement that Mr. Berkeley did not wish to
let the guilty plea stand, and therefore, he didn’t wish to accept
responsibility for this offense,” and that the reduction was also
unwarranted because of Berkeley’s false statements at the
evidentiary hearing. Sentencing Hr’g Tr. 13-14 (Feb. 12, 2008).
The court therefore calculated the offense level to be 32 and the
7
applicable Guidelines range to be 151-188 months. Id. at 14.
The court imposed a sentence of 169 months’ imprisonment,
followed by five years of supervised release. Id. at 18.
Berkeley filed a notice of appeal on February 19, 2008.
Initially, Berkeley’s briefs, prepared by counsel, addressed only
the district court’s denial of his motion to withdraw his plea.
We subsequently granted Berkeley leave to file a pro se
supplemental brief, in which he challenged the district court’s
calculation of his Guidelines range. United States v. Berkeley,
No. 08-3017, Order (D.C. Cir. Sept. 26, 2008). We address both
issues below.
II
A defendant may withdraw a guilty plea prior to sentencing
if he “can show a fair and just reason for requesting the
withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). Although
“[w]ithdrawal of a guilty plea prior to sentencing is to be
liberally granted,” United States v. Taylor, 139 F.3d 924, 929
(D.C. Cir. 1998), we review a district court’s refusal to permit
withdrawal only for abuse of discretion, United States v.
Hanson, 339 F.3d 983, 988 (D.C. Cir. 2003). “In reviewing
such a refusal, we consider three factors: ‘(1) whether the
defendant has asserted a viable claim of innocence; (2) whether
the delay between the guilty plea and the motion to withdraw
has substantially prejudiced the government’s ability to
prosecute the case; and (3) whether the guilty plea was somehow
tainted.’” United States v. Curry, 494 F.3d 1124, 1128 (D.C.
Cir. 2007) (quoting Hanson, 339 F.3d at 988). In this appeal,
Berkeley does not assert that he has a viable claim of
innocence,2 and the government does not suggest that it would
2
Although an entrapment defense may form the basis for a viable
claim of innocence, see Hanson, 339 F.3d at 988, Berkeley instead
8
be prejudiced by being forced to go to trial. We therefore focus
our review on the third factor -- which we have described as the
“‘most important.’” Taylor, 139 F.3d at 929 (quoting United
States v. Ford, 993 F.2d 249, 251 (D.C. Cir. 1993)).
Berkeley’s claim that his plea was tainted is premised on
what he says was ineffective assistance of counsel, a deficiency
that can render a plea involuntary. See Hanson, 339 F.3d at 990.
Such a challenge to a guilty plea “must be evaluated under the
general test for ineffective assistance set forth in Strickland v.
Washington, 466 U.S. 668 (1984).” Curry, 494 F.3d at 1129
(citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)). Ordinarily,
this requires two showings by the defendant: “that counsel’s
performance was deficient . . . [and] that the deficient
performance prejudiced the defense.” Id. (quoting Strickland,
466 U.S. at 687). Under Cuyler v. Sullivan, however,
“[p]rejudice is presumed . . . if the defendant demonstrates that
counsel ‘actively represented conflicting interests’ and that ‘an
actual conflict of interest adversely affected his lawyer’s
performance.’” Strickland, 466 U.S. at 692 (quoting Cuyler v.
Sullivan, 446 U.S. 335, 348, 350 (1980)).
Berkeley alleges two deficiencies in his trial counsel’s
performance. First, he maintains that Wood labored under a
conflict of interest, thus implicating the less demanding Cuyler
standard. Second, he claims that Wood misadvised him
concerning his eligibility for early release, a claim that requires
Berkeley to meet both prongs of the Strickland test. We
consider each argument in turn.
bases his appeal on the claim that his plea was tainted by his lawyer’s
conflict and ineffectiveness. He alleges an entrapment defense only
to further his conflict argument.
9
Berkeley’s conflict-of-interest argument is based on the
following chain of logic: Berkeley told Wood that he engaged
in the crack transaction because Harold Holden, who was
cooperating with the government, had threatened him. Berkeley
therefore had an entrapment defense that Wood failed to pursue.
Wood failed to pursue this defense because he knew that the
government, in order to establish predisposition to commit the
crime and thereby defeat the defense, see Hanson, 339 F.3d at
988, would have called for the testimony of Dennis Butler,
Wood’s client and Berkeley’s co-defendant in the 2000 drug
case. Because the ensuing conflict would have required Wood
to withdraw from representing Berkeley, and because Wood did
not want to lose the work, he avoided pursuing the entrapment
defense that would have led him down that path.
Berkeley’s conflict argument founders on its factual
premise -- that Berkeley advised Wood of Holden’s threat.
Without that predicate, Berkeley’s logical chain collapses: If
Wood did not know of the threat, he would have had no reason
to think that an entrapment defense was available. If he had no
reason to know such a defense was available, he would have had
no reason to know of the conflict that Berkeley claims would
have resulted from its assertion. And because an unknown
conflict could not have “adversely affected [Wood’s]
performance,” the Cuyler standard cannot be met. Cuyler, 446
U.S. at 348.
Although Berkeley testified at the evidentiary hearing that
he informed Wood of Holden’s threatening letter, Mot. Hr’g Tr.
16, Wood testified to the contrary, id. at 123, 136, 143, 144, 146.
The district court resolved the dispute in favor of Wood’s
testimony, finding that Berkeley never informed Wood of this
predicate for an entrapment defense. Berkeley, 515 F. Supp. 2d
at 164. We review such a factual finding for clear error only,
United States v. Eli, 379 F.3d 1016, 1019 (D.C. Cir. 2004), and
10
we find none. Because Wood’s performance could not have
been adversely affected by information he never possessed,
Berkeley’s conflict-of-interest argument must fail.
Berkeley’s second argument, that Wood misadvised him
regarding the possibility of early release, fares no better.
According to Berkeley, Wood advised him that he would be
eligible to receive up to a year of early release by participating
in a substance abuse treatment program under 28 C.F.R.
§ 550.58 (2008). Pursuant to that regulation, “INS detainees”
were ineligible for such early release, id. § 550.58(a)(i),3 and
Berkeley contends that he is certain to be subject to such a
detainer due to his immigration status.
Even if we assume for purposes of argument that Wood’s
advice was constitutionally infirm, Berkeley has not shown
prejudice under Strickland’s second prong. As we have
previously explained, “[w]here the defendant attacks a plea
bargain, the prejudice inquiry ‘focuses on whether counsel’s
constitutionally ineffective performance affected the outcome of
the plea process.’” Hanson, 339 F.3d at 990 (quoting Hill, 474
U.S. at 59). “‘[I]n order to satisfy the ‘prejudice’ requirement,
the defendant must show that there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.’” Id. (quoting Hill,
3
The Homeland Security Act of 2002, Pub. L. No. 107-296, 116
Stat. 2135 (2002), abolished the Immigration and Naturalization
Service (INS) and transferred its enforcement responsibilities to the
Bureau of Immigration and Customs Enforcement (ICE). The
government explains, without contradiction, that “INS detainees” in
28 C.F.R. § 550.58 should now be read as “ICE detainees.” See
Appellee’s Br. 7 n.3; see also 28 C.F.R. § 550.55 (current version of
former § 550.58).
11
474 U.S. at 59) (alteration in original). Berkeley cannot make
that showing.
Any competent attorney would have advised Berkeley that
he stood little chance of obtaining an acquittal if he went to trial
on the indictment filed against him in the District of Columbia,
and a good chance of receiving a higher sentence than if he pled
guilty. The video- and audio-tape evidence of his participation
in the two drug transactions was overwhelming, and -- as the
district court found -- Berkeley did not tell counsel that he had
a defense. Nor was there any reason to believe that Berkeley
would have had a successful defense to the gun and drug charges
that could have been filed against him in Maryland. There,
based on the crack found in his pocket alone, Berkeley faced a
mandatory minimum sentence of 5 years, 21 U.S.C. § 844(a),
and a Guidelines range of 78-97 months, see U.S.S.G.
§ 2D1.1(c)(7); U.S.S.G. ch. 5, pt. A (sentencing table). In return
for pleading guilty in D.C., the government agreed to ensure that
Berkeley would not face charges in Maryland. Plea Agreement
¶ 5.
Berkeley “does not affirmatively allege, much less establish
to a reasonable probability, that he would have chosen to go to
trial” despite the risks, United States v. Scott, 64 Fed. Appx.
781, 782 (D.C. Cir. 2003), if only he had known that the advice
the court found Wood gave him -- that he “could be placed in a
Bureau of Prison[s] drug treatment program which, if completed
successfully, could allow him to be released from prison” up to
a year early -- was incorrect. Berkeley, 515 F. Supp. 2d at 165
(emphases added). Accordingly, Berkeley “cannot prevail on
his ineffective assistance of counsel claim.” Scott, 64 Fed.
Appx. at 782; see United States v. Horne, 987 F.2d 833, 835-36
(D.C. Cir. 1993) (holding that the defendant could not prove
prejudice from alleged ineffective assistance because he “has
never claimed that but for counsel’s errors he would have
12
pleaded not guilty and insisted upon going to trial”); see also
Curry, 494 F.3d at 1131; In re Sealed Case, 488 F.3d 1011,
1016 (D.C. Cir. 2007); Hanson, 339 F.3d at 991-92.
III
In a pro se supplemental brief that we granted Berkeley
leave to file, he raises two further arguments, both challenges to
his sentence. Our review of sentencing decisions is limited. In
United States v. Booker, 543 U.S. 220 (2005), the Supreme
Court “invalidated both the statutory provision, 18 U.S.C.
§ 3553(b)(1) (2000 ed., Supp. IV), which made the Sentencing
Guidelines mandatory, and § 3742(e) (2000 ed. and Supp. IV),
which directed appellate courts to apply a de novo standard of
review to departures from the Guidelines.” Gall v. United
States, 128 S. Ct. 586, 594 (2007). As a consequence, “the
Guidelines are now advisory, and appellate review of sentencing
decisions is limited to determining whether they are
‘reasonable.’” Id.
We review the reasonableness of a sentence in two steps.
First, we must “ensure that the district court committed no
significant procedural error, such as . . . improperly calculating
. . . the Guidelines range [or] treating the Guidelines as
mandatory.” Id. at 597. Second, we “consider the substantive
reasonableness of the sentence imposed under an abuse-of-
discretion standard.” Id. Berkeley’s challenges involve only the
accuracy of the district court’s Guidelines calculations.
Berkeley’s primary contention is that the court erred in
refusing to decrease his offense level for acceptance of
responsibility. Because the “sentencing judge is in a unique
position to evaluate a defendant’s acceptance of responsibility[,]
. . . the determination of the sentencing judge is entitled to great
deference on review.” U.S.S.G. § 3E1.1 cmt. n.5.
13
The district court concluded that “[t]he motion to withdraw
a guilty plea in and of itself is a statement that Mr. Berkeley did
not wish to let the guilty plea stand, and therefore, he didn’t
wish to accept responsibility for this offense.” Sentencing Hr’g
Tr. 13-14. Berkeley insists that this was error because he
wished only to assert an entrapment defense and continued to
admit to “his guilt and involvement in the instant offense.”
Appellant’s Supp. Br. 4. Yet, by simultaneously claiming that
he accepted responsibility but that he was entrapped, Berkeley
was “in effect claiming that he accept[ed] responsibility even
though he was not responsible.” United States v. Kirkland, 104
F.3d 1403, 1405 (D.C. Cir. 1997). “It may be that a situation
could be presented in which an entrapment defense is not
logically inconsistent with a finding of a defendant’s acceptance
of responsibility,” but Berkeley did not automatically earn the
acceptance credit simply by claiming entrapment as his only
defense. Id. at 1406. Moreover, the district court “didn’t think
that Mr. Berkeley was telling the truth” about his alleged
entrapment defense, and the court made “very specific findings
about that.” Sentencing Hr’g Tr. 14. Under these
circumstances, the court was more than justified in denying an
offense-level reduction for acceptance of responsibility. Cf.
United States v. Mendoza, 42 Fed. Appx. 471, *1 (D.C. Cir.
2002) (“The district court did not clearly err in denying
appellant a downward adjustment for acceptance of
responsibility in light of the court’s determination . . . that
appellant untruthfully denied relevant conduct.”); United States
v. Taylor, 937 F.2d 676, 680 (D.C. Cir. 1991) (affirming a denial
of credit for acceptance of responsibility where the court found
that the defendant had not been “truthful and complete” in
explaining the circumstances of his crime).
Finally, we briefly address Berkeley’s further contention
that he was denied the benefit of a November 1, 2007 Guidelines
amendment aimed at ameliorating the disparity between crack
14
and powder cocaine sentences. See U.S.S.G. app. C, amend.
706. Prior to the amendment, an offense like Berkeley’s,
involving 50 to 150 grams of crack, would have resulted in a
base offense level of 32; following the amendment, it results in
a base offense level of 30. Compare U.S.S.G. § 2D1.1(c)(4)
(2006), with U.S.S.G. § 2D1.1(c)(5) (2007). Here, the district
court properly calculated Berkeley’s base offense level as 30,
pursuant to the amended Guidelines. The court calculated
Berkeley’s total offense level as 32, but this was based on a two-
level obstruction-of-justice enhancement that was unaffected by
the amendment. Sentencing Hr’g Tr. 6, 13-14. Hence, there
was no error in the court’s sentencing calculation.4
IV
Because the district court neither abused its discretion in
denying Berkeley’s motion to withdraw his guilty plea, nor
committed error in calculating Berkeley’s sentence, the court’s
judgment is
Affirmed.
4
Berkeley argues in his supplemental reply brief that imposing an
obstruction-of-justice enhancement was an abuse of discretion.
Appellant’s Supp. Reply Br. 8. Arguments made in reply briefs,
particularly supplemental reply briefs, come too late for our
consideration. See Hwang Geum Joo v. Japan, 413 F.3d 45, 49 n.*
(D.C. Cir. 2005); United States v. Johnson, 216 F.3d 1162, 1168 (D.C.
Cir. 2000).