United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3788
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Reginald Scott Hubbard, *
*
Appellant. *
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Submitted: October 19, 2010
Filed: April 20, 2011
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Before SMITH, COLLOTON, and SHEPHERD, Circuit Judges.
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SMITH, Circuit Judge.
A jury found Reginald Scott Hubbard guilty on one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The
district court1 sentenced Hubbard to 96 months' imprisonment. On appeal, Hubbard
argues that (1) he was deprived of the effective assistance of counsel because his trial
counsel told him that the district court would not allow him to testify in his own
defense and (2) the district court abused its discretion by imposing a sentence that
was substantively unreasonable. For the following reasons, we affirm.
1
The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
I. Background
On June 18, 2008, the Minneapolis Police Department executed a search
warrant at Hubbard's apartment and found Hubbard with his adult son. In searching
the apartment, police found a semi-automatic pistol, a digital scale, and marijuana.
The police arrested him for suspected weapons and narcotics violations. The police
also arrested his son for a suspected narcotics violation. Subsequent to his arrest,
Hubbard admitted, on four separate occasions, to owning the gun. One of these
admissions occurred after police informed him that they had released his son from jail
because he had "no connection" to the suspected crimes.
A grand jury indicted Hubbard on one count of being a felon in possession of
a firearm, in violation of §§ 922(g)(1) and 924(a)(2). Hubbard pleaded not guilty and
proceeded to a jury trial. Immediately before the trial started, outside the presence of
the jury, the district court informed Hubbard of his right to testify:
THE COURT: . . . If you wish to testify, if you have a story or you have
something you want the jury to hear from you, nobody can stop you.
Your lawyer cannot stop you and the prosecutor can't and I can't. That
means you don't have to testify if you don't want to, but you absolutely
can if you like, it is purely your choice. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: The decision whether or not for a criminal defendant to
testify in a trial is an important one. I know you will discuss it with your
lawyer. I'm not asking you now what your choice is, I don't care, that's
your privilege. But I wanted to make sure that formally you understood
your rights. Okay?
THE DEFENDANT: Okay.
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Following the close of the government's case, Hubbard's trial counsel rested the
defense's case without calling Hubbard to testify. The record reflects that Hubbard did
not voice any objections or otherwise request to testify.
After the jury returned a guilty verdict, Hubbard filed a pro se motion to relieve
his appointed trial counsel and a pro se motion for new trial, in which he alleged,
among other things, that he was denied effective assistance of counsel. The district
court appointed new counsel, who filed a motion for an evidentiary hearing on
Hubbard's claims.
At the evidentiary hearing on Hubbard's motion for new trial, Hubbard's new
appointed counsel stated that Hubbard believed that, during trial, the district court
held a sidebar with Hubbard's trial counsel and the government attorney; after this
sidebar, Hubbard's trial counsel told Hubbard that the court would not allow him to
testify.2 Hubbard then testified at the hearing. He acknowledged that the court had
informed him of his right to testify and that he understood that no one could prevent
him from testifying. He also stated that, after the government rested its case, he
informed his trial counsel that he wanted to testify, but his trial counsel informed him
that the court would not allow him to take the stand. In addition, he stated that the
court "told the jury [it] was shocked" when his trial counsel rested the defense's case.3
When asked, Hubbard could not explain why he did not protest when his trial
attorney rested without calling him to testify. Tammy Pettis, Hubbard's fiancée, also
testified at the hearing. She stated that she was prepared to testify in Hubbard's
2
A review of the trial transcript does not reveal any record of this alleged bench
conference. At the evidentiary hearing, the district court stated that it has "never had
a bench conference without a record." Indeed, the trial transcript does reflect two
bench conferences, both of which were unrelated to whether Hubbard could testify
at trial.
3
No such statement by the district court appears in the trial transcript.
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defense, but Hubbard's trial counsel informed her that the district court would not
allow her to testify either.
At a subsequent sentencing hearing, the district court addressed Hubbard's
motion for a new trial, expressly finding Hubbard and his fiancée not credible. The
court then denied Hubbard's motion for a new trial.
At sentencing, the district court first calculated the advisory Sentencing
Guidelines range, explicitly noting that the Guidelines are "effectively advisory." The
court adopted the findings in the presentence investigation report, but it declined the
government's request to impose a four-level enhancement under U.S.S.G.
§ 2K2.1(b)(6) for possessing the gun in connection with another felony offense.
Accordingly, the court found that Hubbard had a total offense level of 24 and a
criminal history category of IV, yielding a Guidelines range of 77 to 96 months.
The district court then allowed Hubbard to speak. During his allocution,
Hubbard primarily attempted to demonstrate that he had never possessed the firearm.
After hearing the government's sentencing argument, the court sentenced Hubbard to
96 months' imprisonment—the top of the Guidelines range—taking into account his
prior criminality and current mendacity. In addition, the court's judgment
recommended that Hubbard participate in a drug treatment program.
II. Discussion
Hubbard raises two arguments on appeal. First, he asserts that he was deprived
of the effective assistance of counsel because his trial counsel told him that the
district court would not allow him to testify in his own defense. Second, he contends
that the district court abused its discretion by imposing a sentence that was
substantively unreasonable. We address each argument in turn.
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A. Ineffective Assistance of Counsel
Hubbard first argues that he was deprived of the effective assistance of counsel
because his trial counsel told him that the district court would not allow him to testify
in his own defense. Although he concedes that the district court informed him of his
right to do so, he claims that his counsel's statement later deprived him of that right.
This ineffectiveness prejudiced him, he asserts, because his testimony was "his only
chance to secure a not guilty verdict" because he needed to explain to the jury why
he had confessed to owning the firearm.
Claims of ineffective assistance of counsel are generally best litigated in
collateral proceedings, such as an action under 28 U.S.C. § 2255. See, e.g., United
States v. Lewis, 483 F.3d 871, 873 n.2 (8th Cir. 2007). "We will consider
ineffective-assistance claims on direct appeal only where the record has been fully
developed, where not to act would amount to a plain miscarriage of justice, or where
counsel's error is readily apparent." United States v. Ramirez-Hernandez, 449 F.3d
824, 827 (8th Cir. 2006). When the defendant raises an ineffective assistance claim
in a motion for new trial, we have, on occasion, found that the trial court developed
a record "sufficient to examine counsel's performance." United States v. Villalpando,
259 F.3d 934, 938 (8th Cir. 2001) (noting that, although the district court did not
conduct a hearing, the court was able to observe trial counsel's "poor" representation
at trial); see also United States v. Williams, 562 F.3d 938, 940–41 (8th Cir. 2009)
(finding a sufficiently developed record when potential trial witnesses testified at the
post-trial hearing); United States v. Williams, 897 F.2d 1430, 1434 (8th Cir. 1990)
(finding a sufficiently developed record when trial counsel and an investigator
testified at a post-trial hearing that they contacted a potential witness whose testimony
would not have affected the outcome of the case).
Here, the district court sufficiently developed the record on Hubbard's
ineffective-assistance-of-counsel claim to enable our review. Hubbard raised his
claim in a motion for new trial, and the district court held an evidentiary hearing on
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the matter. Hubbard admitted that the district court had informed him of his right to
testify at trial and that he understood that no one, including his attorney, could
prevent him from doing so. Nonetheless, Hubbard and his fiancée, Pettis, both
testified that Hubbard's trial counsel told them that the district court would not let
them testify at trial. The district court, however, concluded that Hubbard and Pettis
were not credible, finding that Hubbard's testimony was unsupported or even
contradicted by the record. Although testimony from Hubbard's trial counsel might
have been helpful to conclusively determine whether she made these statements, her
testimony is not necessary given the unreliability of Hubbard's and Pettis's testimony.
Accordingly, this record is sufficient to evaluate Hubbard's ineffective-assistance
claim.
We review the district court's denial of a motion for new trial based on
ineffective assistance of counsel for abuse of discretion. Villalpando, 259 F.3d at 938.
"In order to establish a claim of ineffective assistance of counsel, the defendant must
show that counsel's performance fell below an objective standard of reasonable
competence, and that the deficient performance prejudiced the defendant." Id. (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Hubbard was not denied the effective assistance of counsel. He has failed to
establish the first prong for an ineffective-assistance-of-counsel claim under
Strickland. Hubbard conceded at the evidentiary hearing that the court fully informed
him of his right to testify. Absent a showing that his trial counsel "unduly influenced
or coerced" him not to testify, Hubbard waived his right to testify by remaining silent
after his trial counsel rested without calling him as a witness. Berkovitz v. Minnesota,
505 F.3d 827, 828 (8th Cir. 2007) (per curiam) (finding that the defendant knowingly
waived her right to testify by remaining silent after her trial counsel rested, even
though her trial counsel strongly advised her not to testify). Hubbard's only evidence
of such influence or coercion was his and Pettis's testimony that his trial counsel told
them that the district court would not let them testify. The district court, however,
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found that their testimony was not credible, a finding that is "virtually unassailable
on appeal." United States v. Bolden, 596 F.3d 976, 982 (8th Cir. 2010) (quotation and
citation omitted). The record supports the district court's finding. Hubbard cites no
evidence to support his claim about a bench conference discussing his ability to
testify or his claim that the court expressed its shock to the jury when the defense
rested without calling Hubbard to testify. Accordingly, the district court did not abuse
its discretion in denying Hubbard's motion for new trial based on ineffective
assistance of counsel.
B. Substantive Reasonableness of the Sentence Imposed
Hubbard next contends that the district court abused its discretion by imposing
a substantively unreasonable sentence. He maintains that the district court should not
have considered his criminal history when determining his sentence under 18 U.S.C.
§ 3553(a) because the Guidelines had already taken his criminal history into account
when calculating the applicable Guidelines range.
"When we review the imposition of sentences, whether inside or outside the
Guidelines range, we apply a deferential abuse-of-discretion standard." United States
v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (internal quotations and citations
omitted). "We 'must first ensure that the district court committed no significant
procedural error,'" including "'failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including an explanation for any deviation
from the Guidelines range.'" Id. (quoting Gall v. United States, 552 U.S. 38, 51
(2007)).
Because Hubbard has not alleged any form of procedural error, "we bypass the
first part of our review and move directly to review the substantive reasonableness
of his sentence." United States v. O'Connor, 567 F.3d 395, 397 (8th Cir. 2009). We
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review the substantive reasonableness of the sentence imposed using a deferential
abuse-of-discretion standard. Feemster, 572 F.3d at 461. In making this
determination, this court must "take into account the totality of the circumstances."
Id. If the sentence imposed is within the advisory Guidelines range, this court "may,
but is not required to, apply a presumption of reasonableness." Gall, 552 U.S. at 51.
The district court should make "an individualized assessment based on the facts
presented, specifically addressing the defendant's proffered information in its
consideration of the 18 U.S.C. § 3553(a) sentencing factors." United States v. Jordan,
573 F.3d 586, 590 (8th Cir. 2009) (internal quotations, citations, and alterations
omitted).
The district court did not abuse its discretion in imposing a sentence at the top
of the applicable Guidelines range. Hubbard cites no authority for his assertion that
a court may not consider a defendant's criminal history separately from the calculation
of the applicable Guidelines range. In contrast, the language of § 3553(a) requires a
sentencing court to consider, among other things, "the history and characteristics of
the defendant" and the need "to protect the public from further crimes of the
defendant" along with the applicable sentence recommended by the Guidelines. 18
U.S.C. § 3553(a)(1), (a)(2)(C) and (a)(4)(A). Here, the court considered Hubbard's
criminal history as one of several factors justifying a sentence at the top of the
applicable Guidelines range. The record demonstrates that the court made an
individualized assessment of Hubbard, considering letters, memoranda, and oral
arguments he submitted to the court. Hubbard has not demonstrated that his
within-Guidelines sentence should not be entitled to a presumption of reasonableness,
and after a careful review of the sentencing record, we conclude that the district court
did not abuse its discretion in sentencing Hubbard to 96 months' imprisonment.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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