United States v. Goodwin

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 7, 2010 Decided February 5, 2010

No. 09-3053

UNITED STATES OF AMERICA,
APPELLEE

v.

DARRELL A. GOODWIN, ALSO KNOWN AS GOODY,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:99-cr-00122-TFH-1)

Beverly G. Dyer, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.
J. Kramer, Federal Public Defender.

Patricia A. Heffernan, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief were Elizabeth
A. Trosman and Roy W. McLeese III, Assistant U.S.
Attorneys.

Before: SENTELLE, Chief Judge, TATEL, Circuit Judge,
and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.
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TATEL, Circuit Judge: Following affirmance of his
conviction for possession with intent to distribute cocaine,
appellant filed a 28 U.S.C. § 2255 motion alleging, among
other things, that defense counsel rendered ineffective
assistance by failing to offer expert testimony in support of
his request for a “reverse sting” departure pursuant to
U.S.S.G. § 2D1.1, Application Note 14. The district court
denied the motion. Finding no prejudice, and rejecting
appellant’s other arguments, we affirm.

I.
Prior to his arrest for purchasing cocaine from
undercover Drug Enforcement Administration (DEA) agents,
appellant Darrel Goodwin had on several occasions sold DEA
Agent Kenneth Abrams small quantities of heroin. During
one such transaction, Goodwin told Abrams that he wanted to
buy some cocaine, but was unhappy with the current price of
the drug. Abrams responded that he had a source that could
provide a single kilogram of cocaine for about $24,000. He
then introduced Goodwin to Special Agent Robert Valentine,
who posed as a dealer and offered to sell Abrams and
Goodwin five kilos for $100,000—a bulk discount of sorts.
Abrams gave Valentine a fake down payment, and Goodwin
said he could put up $37,000.

A few days later, Goodwin and Abrams met with
Valentine at a hotel. Although able to come up with only
about $20,000, Goodwin said that he still wanted to buy three
kilos of cocaine. Accordingly, Valentine agreed to sell him
one kilo for about $20,000 cash, and to front him the second
in exchange for $1,500 worth of heroin on the understanding
that Goodwin would pay off the balance with proceeds from
street sales of the cocaine. Goodwin planned on returning for
the third kilo the next day, but DEA agents arrested him as he
left the hotel room with the two kilos.
 3
Goodwin pleaded guilty in the U.S. District Court for the
District of Columbia to possession with intent to distribute
500 grams or more of cocaine. See 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B)(ii). Because he qualified as a career offender
under U.S.S.G. § 4B1.1, the federal Sentencing Guidelines
range for his offense came to 188–235 months’ imprisonment.
Pointing out that Goodwin had been arrested in a “reverse
sting”—an operation in which undercover agents sell drugs to
the defendant—defense counsel asked the court to grant a
downward departure on the ground that the DEA agents
induced Goodwin to purchase more cocaine than he otherwise
would have by selling it to him at a price “substantially below
the market value.” U.S.S.G. § 2D1.1, Application Note 14.
Although counsel failed to call an expert witness in support of
this argument, Abrams testified for the government that the
market price for a single kilo of cocaine was $27,000 in New
York or Miami and that the price would typically be higher in
Washington, D.C. The district court denied Goodwin’s
reverse sting departure request and imposed a sentence of 188
months—the bottom end of the Guidelines range.

Goodwin appealed to this court, again complaining that
the price for the first kilo—$20,000—was artificially low and
that the credit terms for the second kilo were overly generous.
Finding that Goodwin had failed to prove that these terms
were substantially more favorable than the market would
bear, we affirmed the district court’s rejection of a reverse
sting departure. United States v. Goodwin, 317 F.3d 293,
297–99 (D.C. Cir. 2003).

Alleging ineffective assistance of counsel, Goodwin
moved to vacate or set aside his sentence pursuant to 28
U.S.C. § 2255. Specifically, Goodwin argued that defense
counsel performed deficiently in failing to call an expert to
support his request for a reverse sting departure. In support,
 4
Goodwin introduced an affidavit from a former police officer
who stated that the market price for a kilo of cocaine in
Washington, D.C., would have ranged from $27,000 to
$35,000, and that a buyer with a strong relationship with the
source could have purchased two or three kilos for about
$24,000 each. The district court, believing that defense
counsel could have deemed such testimony cumulative in
light of Agent Adams’s testimony regarding cocaine prices,
concluded that counsel had not provided deficient assistance.
United States v. Goodwin, 607 F. Supp. 2d 47, 54–55 (D.D.C.
2009). The court also rejected Goodwin’s theory that counsel
should have argued that Goodwin’s traumatic medical
history—he suffered severe burns over 60 percent of his body
in a 1986 house fire—rendered him eligible for downward
departures under U.S.S.G. §§ 5K2.11 (lesser harms) and
5H1.4 (extraordinary physical impairment). Id. at 50–51, 52–
53.

Pursuant to a certificate of appealability (COA) granted
by the district court, Goodwin now appeals. See 28 U.S.C. §
2253(c)(1) (requiring a COA to appeal a final order in a
section 2255 proceeding).

II.
To prevail on an ineffective assistance of counsel claim
a defendant must “show both that ‘counsel’s representation
fell below an objective standard of reasonableness,’ and that
there is a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.’” Smith v. Spisak, 130 S.Ct. 676, 685 (2010)
(quoting Strickland v. Washington, 466 U.S. 668, 688, 694
(1984)) (citations omitted). “[T]here is no reason for a court
deciding an ineffective assistance claim to approach the
inquiry in the same order or even to address both components
 5
of the inquiry if the defendant makes an insufficient showing
on one.” Strickland, 466 U.S. at 697.

Whether defense counsel rendered ineffective assistance
presents a mixed question of law and fact. Id. at 698.
Sometimes we review such questions de novo and sometimes
for abuse of discretion. But “not having been confronted with
a case in which the standard made a difference” in an
ineffective assistance of counsel claim, “we have thus far
expressly declined to fix the appropriate standard.” United
States v. Toms, 396 F.3d 427, 433 (D.C. Cir. 2005). Here too
we have no need to settle the issue because Goodwin’s
ineffective assistance claim fails “even under the more
searching de novo standard.” Id.

We begin with the reverse sting departure. Guidelines
Application Note 14 states:

If, in a reverse sting (an operation in which a
government agent sells or negotiates to sell a
controlled substance to a defendant), the court finds
that the government agent set a price for the
controlled substance that was substantially below the
market value of the controlled substance, thereby
leading to the defendant’s purchase of a significantly
greater quantity of the controlled substance than his
available resources would have allowed him to
purchase except for the artificially low price set by
the government agent, a downward departure may be
warranted.

U.S.S.G. § 2D1.1, Application Note 14. Goodwin argues that
by failing to support the request for a reverse sting departure
with expert testimony, defense counsel rendered
constitutionally deficient assistance—particularly given our
 6
recognition in his direct appeal that the district court rejected
the request as “unsupported by the evidence.” Goodwin, 317
F.3d at 295. The government responds that the reverse sting
departure is inapplicable because Goodwin was sentenced not
based on drug quantity but rather as a career offender. We
agree with the government.

Goodwin pleaded guilty to possession with intent to
distribute 500 grams or more of cocaine, thus subjecting him
to a statutory maximum term of forty years. See 21 U.S.C. §
841(b)(1)(B). Under the Guidelines’ career offender
provision, the offense level for a career criminal facing a
statutory maximum of forty years is 34. U.S.S.G. § 4B1.1(b).
Because 34 is “greater than the offense level otherwise
applicable,” id., i.e., the offense level calculated based on
drug quantity pursuant to U.S.S.G. § 2D1.1, the district court
sentenced Goodwin under the career offender table. For this
reason, the government argues, whether or not the DEA
agents induced Goodwin to purchase more than 500 grams of
cocaine is irrelevant because any drug quantity beyond 500
grams played no role in determining his Guidelines range.

Goodwin questions neither the district court’s calculation
of his career offense level nor the government’s assertion that
he possessed sufficient cash to purchase the 500 grams of
cocaine that set that level. Instead, he argues that the
government erroneously assumes that Note 14 only authorizes
a court to recalculate drug quantity. According to Goodwin,
the sentencing court must apply a reverse sting departure, like
other departures, after the offense level is set. Thus the court
can depart under Note 14 even where, as here, the marginal
increase in drug quantity allegedly induced by price
manipulation had no impact on offense level. We have no
need to decide whether Note 14 authorizes recalculations,
departures, or both, for we conclude that Goodwin has failed
 7
to show prejudice, i.e., a reasonable probability that the
district court would have granted a departure even if defense
counsel had provided evidence of drug prices.

Guidelines section 2D1.1 increases a defendant’s base
offense level as the amount of drugs involved increases. This
linkage serves the purpose of imposing punishment
proportionate to the defendant’s culpability. In a reverse sting
operation, however, where the government controls the price
and quantity of drugs sold, this sentencing scheme enables
law enforcement agents to “structure sting operations in such
a way as to maximize the sentences imposed on defendants.”
United States v. Staufer, 38 F.3d 1103, 1107 (9th Cir. 1994).
Manipulation of this sort effectively decouples drug quantity
from culpability, thereby undermining one purpose of the
quantity-based sentencing ranges set forth in the Guidelines.
Note 14 represents the Sentencing Commission’s recognition
of this problem and of “the unfairness and arbitrariness of
allowing drug enforcement agents to put unwarranted
pressure on a defendant in order to increase his or her
sentence without regard for his predisposition, his capacity to
commit the crime on his own, and the extent of his
culpability.” Id.

A reverse sting departure pursuant to Note 14 is therefore
most appropriate where the government, in setting overly
generous price terms, induces a defendant to purchase more
drugs than he otherwise could afford and that difference in
drug quantity affects the defendant’s sentence. But where, as
here, drug quantity bears no relation to the defendant’s
offense level (beyond setting the floor of 500 grams), the
sentencing court has little reason to grant a departure to
correct any artificial inflation in drug quantity resulting from
alleged price manipulation.
 8
At oral argument, Goodwin’s counsel suggested that if
presented with expert testimony, the district court might
nonetheless have chosen to grant a reverse sting departure in
order to “send a message to the government that these stings
need to be fair.” Oral Arg. at 4:22. As Judge Gertner has
explained, however, Note 14 of the Guidelines “focuses less
on the motives of the government, and more on the
defendant’s predisposition.” United States v. Lora, 129 F.
Supp. 2d 77, 90 (D. Mass. 2001) (discussing then-Note 15);
see also United States v. Searcy, 233 F.3d 1096, 1101 (8th
Cir. 2000) (“[T]he Sentencing Guidelines focus the
sentencing entrapment analysis on the defendant’s
predisposition. The Sentencing Guidelines never mention
outrageous government conduct.”). And, in other sentencing
manipulation cases, we have taken to heart the Supreme
Court’s “warn[ing] against using an entrapment defense to
control law enforcement practices of which a court might
disapprove.” United States v. Walls, 70 F.3d 1323, 1329
(D.C. Cir. 1995) (rejecting contention that undercover agents’
insistence that cocaine be delivered in crack form constitutes
sentencing entrapment and emphasizing that the primary
element in an entrapment defense is the defendant’s
predisposition) (citing United States v. Russell, 411 U.S. 423,
435 (1973)); see also United States v. Hinds, 329 F.3d 184,
188 (D.C. Cir. 2003) (same).

This is not to say that defendants sentenced as career
offenders are precluded, as a matter of law, from obtaining the
benefit of a reverse sting departure. To the contrary, under
different circumstances the quantity of drugs a defendant was
induced to purchase could affect the defendant’s position on
the career offender table. Although we do not foreclose the
possibility that a sentencing court may also, in some
circumstances, have cause to grant a reverse sting departure
even where drug quantity had no effect on offense level,
 9
Goodwin alleges ineffective assistance of counsel, meaning
that to prevail here he must show a “reasonable probability”
that expert testimony as to drug market conditions “would
have made a significant difference.” Smith, 130 S.Ct. at 685
(internal quotation marks omitted). Goodwin was ready,
willing, and able to purchase at fair market value the 500
grams of cocaine that ultimately determined his sentence as a
career offender. He has given us no reason to think that the
district court would nonetheless have granted a departure
solely to punish the government for bad behavior.

III.
We can easily dispose of Goodwin’s remaining
arguments.

He contends that counsel should have sought a downward
departure under the Guidelines’ “lesser harms” provision,
which authorizes a reduced sentence where a defendant
commits a crime “in order to avoid a perceived greater harm.”
U.S.S.G. § 5K2.11. According to Goodwin, “[c]ounsel could
have presented evidence to support [his] claim that he
suffered from excruciating pain and sold drugs to support an
addiction to heroin, which developed after he was extensively
treated with opioids” as a result of his severe burns.
Appellant’s Br. 19–20. The district court expressly
acknowledged the possibility that Goodwin’s pain drove him
to addiction, but nonetheless concluded that his long history
of drug dealing outweighed that mitigating factor. See
Goodwin, 607 F. Supp. 2d at 51. Given this, Goodwin has
failed to show a reasonable probability that the district court,
having effectively rejected the predicate of Goodwin’s lesser
harms argument, would have departed had counsel formally
invoked section 5K2.11.
 10
Next, Goodwin asserts that counsel provided ineffective
assistance in failing to argue that the pain stemming from
Goodwin’s burn injuries constitutes an “extraordinary
physical impairment” warranting departure under U.S.S.G. §
5H1.4. That Guideline, however, makes clear that physical
condition is “not ordinarily relevant in determining whether a
departure may be warranted,” id., and we have emphasized
that section 5H1.4 “requires not just infirm[ity]” but
“extraordinary physical impairment,” United States v.
Brooke, 308 F.3d 17, 21 (D.C. Cir. 2002) (emphasis added).
Because Goodwin has shown neither that his impairment is
“present to an exceptional degree,” Koon v. United States, 518
U.S. 81, 96 (1996), nor that his infirmity is such that “home
detention may be as efficient as, and less costly than,
imprisonment,” U.S.S.G. § 5H1.4, we see no prejudice arising
from counsel’s failure to pursue a section 5H1.4 departure.
Cf. United States v. Smith, 27 F.3d 649, 652 (D.C. Cir. 1994)
(explaining that the Sentencing Commission identified
extreme disability as one offender characteristic that may, in
some cases, “make it possible to achieve the goals of a prison
sentence . . . with an alternative confinement”).

Goodwin claims that counsel should have sought a
departure under section 4A1.3(b) (over-representation of
seriousness of criminal history) and argued that his case falls
outside the Guidelines’ “heartland,” Koon, 518 U.S. at 96.
But Goodwin never sought a COA on these issues, nor did the
district court grant one. Because a COA is a “jurisdictional
prerequisite” to appellate review, Miller-El v. Cockerell, 537
U.S. 322, 336 (2003), neither argument is properly before us.

According to Goodwin, even if his reverse sting and
medical history claims “failed to establish prejudice alone, the
cumulative weight of both demonstrate[d] a reasonable
probability of a more favorable outcome.” Appellant’s Br.
 11
29; see U.S.S.G. § 5K2.0. As noted above, however, a
reverse sting departure is inapplicable in these circumstances,
and Goodwin’s medical history claims are without merit.
That leaves no combination of factors “present to a substantial
degree” that could render this case an “exceptional one,”
particularly given the Commission’s belief “that such cases
should occur extremely rarely.” U.S.S.G. § 5K2.0(c) &
Application Note 3(C).

Finally, Goodwin insists that he should be resentenced
under United States v. Booker, 543 U.S. 220 (2005), which
the Supreme Court issued while his section 2255 motion was
pending in the district court. That argument, however, is
foreclosed by In re Fashina, 486 F.3d 1300, 1303–04 (2007),
which held that Booker announced a non-watershed
procedural rather than substantive rule and is therefore not
retroactively applicable in collateral proceedings.

IV.
For the foregoing reasons, we affirm.

So ordered.