United States v. Hankerson

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit

7-31-2007

USA v. Hankerson
Precedential or Non-Precedential: Precedential

Docket No. 06-3291

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________

No. 06-3291
_________________

UNITED STATES OF AMERICA

v.

DESMOND HANKERSON,
Appellant
_________________

On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Crim. No. 03-798)
District Judge: Honorable Jose L. Linares

_________________

Submitted Under Third Circuit L.A.R. 34.1(a)
June 29, 2007
__________________

Before: BARRY, FUENTES, and GARTH, Circuit Judges
(Opinion Filed: July 31, 2007)

Richard Coughlin
Kevin Carlucci
Louise Arkel
Office of the Federal Public Defender
972 Broad Street, Fourth Floor
Newark, NJ 07102
Attorneys for Appellant
 Christopher J. Christie
George S. Leone
Allen Harberg
Office of the United States Attorney
970 Broad Street
Newark, NJ 07102
Attorneys for Appellee

_________________

OPINION

_________________

Garth, Circuit Judge:

Appellant Desmond Hankerson contends that his 121-
month sentence imposed by the District Court should be vacated
because it is unreasonable and because he received ineffective
assistance of counsel by the lawyer who handled his sentencing
in violation of his rights under the Sixth Amendment to the
United States Constitution. The District Court had subject
matter jurisdiction in this case pursuant to 18 U.S.C. § 3231, and
we have jurisdiction over the appeal pursuant to 18 U.S.C. §
3742.1 We will affirm.

I.

On March 8, 2002, members of the Newark Auto Theft

1
The judgment of conviction and sentence were entered on June 8, 2005. On
November 10, 2005, Hankerson filed a motion pursuant to 28 U.S.C. § 2255 to vacate,
set aside, or correct the sentence, claiming that he had asked trial counsel to file a notice
of appeal but that counsel had failed to do so. Based on the submissions from all parties,
on July 6, 2006, the District Court granted Hankerson’s request for permission to file a
notice of appeal, and appointed new counsel to represent him. The notice of appeal was
then timely filed on July 12, 2006.

2
 Task Force observed a car being driven erratically and at a high
rate of speed. They activated their emergency lights and pulled
the car over, suspecting that it might be stolen. The car was
being driven by Hankerson. Task Force members ordered him
to exit the vehicle. Upon exiting, a plastic bag filled with U.S.
currency fell out of the car. The police then scanned the rear
seat of the car from the outside of the vehicle using their
flashlights, and saw two bundles of suspected heroin next to the
armrest of the back seat. Hankerson was then placed under
arrest. Task Force members then opened the rear door to
retrieve the suspected heroin, and noticed what appeared to be
a hidden compartment underneath the armrest, from which an
item, which appeared to be several more bricks of heroin, was
protruding. Ultimately, Task Force members retrieved from the
vehicle: twenty-five bricks of heroin; over 2500 glassine
envelopes, each containing one of four different “brands” of
heroin; approximately one kilogram of cocaine; a .38 revolver
loaded with five rounds; and $8,400 in U.S. currency. The total
net weight of the seized heroin was 110.2 grams and the total net
weight of the seized cocaine was 1,012 grams.

This was Hankerson’s third drug arrest that resulted in a
conviction. On July 6, 1997, Newark police officers observed
Hankerson handing another man what they believed were
narcotics and receiving currency. As police approached,
Hankerson was observed attempting to discard a brown bag. He
was apprehended, and the bag was found to contain 32 vials of
cocaine. The incident occurred within 1000 feet of a school.
Less than three weeks later, on July 25, 1997, Hankerson was
again arrested by the Newark police after being observed
participating in another drug transaction. Officers seized 44
vials of cocaine and $120 in U.S. currency from him. On
December 1, 2000, Hankerson pled guilty in each of these cases
to possession of cocaine with intent to distribute and was
sentenced to three years’ probation. In March 2002, when
Hankerson committed the instant offense, he was still serving
these two terms of probation.2

2
Hankerson was also found to be in violation of probation on May 9, 2003 and
September 15, 2003. In addition, on August 5, 2002, Hankerson admitted to a violation

3
 Pursuant to a plea agreement, Hankerson pled guilty to
one count of distribution and possession with intent to distribute
more than 100 grams of heroin, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(B), an offense carrying a statutory
mandatory minimum of five years’ imprisonment. The plea
agreement contained stipulations as to the applicable guideline
(U.S.S.G. § 2D1.1); the applicable base offense level (26); and
the propriety of the two- and one-level downward adjustments
for acceptance of responsibility, pursuant to U.S.S.G. §§
3E1.1(a) and (b), respectively. On February 5, 2004, Hankerson
pled guilty pursuant to the plea agreement.

Because Hankerson’s two offenses in 1997 were for
controlled substance crimes and were separated by an
intervening arrest, the Presentence Investigation Report (“PSR”)
calculated his guidelines range using the Career Offender
guideline.3 See U.S.S.G. § 4B1.1. This resulted in an offense
level of 34 and criminal history category of VI. After deducting
three levels for acceptance of responsibility, Hankerson’s total
offense level was 31.4 At criminal history category VI, the

of the conditions of his pretrial release in the instant case; he had been released on bond
subject to 24-hour house arrest except for employment, but on that date was found
neither at home nor at work during a visit by Pretrial Services. As a result of this
violation, Hankerson was denied the ability to leave his residence for employment
purposes.
3
An earlier version of the PSR had calculated the guidelines range without
concluding that the 1997 offenses were triggering offenses for the Career Offender
guideline. The plea agreement’s base offense level of 26 was increased by two levels
pursuant to U.S.S.G. § 2D1.1(b)(1) (possession of a weapon). After deducting three
levels for acceptance of responsibility, the total offense level was 25. Hankerson was
given one criminal history point for each of the 1997 offenses, and two more for being on
probation at the time of the instant offense. The four criminal history points resulted in a
criminal history category of III, which, at offense level 25, meant a guidelines range of
70-87 months’ imprisonment.
4
Hankerson objected to the two-point enhancement for possession of a weapon
and to the treatment of the 1997 offenses as separate offenses, but did not specifically

4
 guidelines range was 188-235 months’ imprisonment.

Hankerson was sentenced on June 6, 2005. At the
hearing, defense counsel renewed his objection to the two-level
enhancement for presence of a weapon. He also objected to the
PSR’s mention of the presence of cocaine, but acknowledged
that it did not affect the guidelines calculation. Finally, he
argued that “in the interest of justice” the 1997 offenses should
be treated as related for purposes of the Career Offender
guideline, because Hankerson was sentenced for them on the
same date and received concurrent sentences. He acknowledged,
however, that such treatment was contrary to Third Circuit
precedent, and argued, in the alternative, that the court should
grant a downward departure because sentencing Hankerson as
a Career Offender would overrepresent his criminal history.

The District Court found that the 1997 offenses were
properly treated as separate offenses and that they triggered the
Career Offender provision. This finding, as the court noted,
rendered the objection to the gun enhancement moot, at least as
far as the guidelines calculation. The District Court then
calculated the advisory guidelines range as 188 to 235 months.

Defense counsel then argued for downward departures on
two grounds: Hankerson’s history of substance abuse and that
the Career Offender guideline overstated Hankerson’s criminal
history. The District Court denied a departure based on
substance abuse, noting that because Hankerson’s trouble with
substance abuse had ceased by the time he committed the instant
offense, there was no causal connection between substance
abuse and the crime and therefore a departure was not
warranted. The District Court did, however, agree that a
downward departure was called for on the issue of the
overstatement of criminal history. The Court commented that
“unlike other career offenders that come before this court,
[Hankerson] never served any prison term before,” only

address the Career Offender designation. He also objected to the determination of a
criminal history category of III, even though this PSR calculated a criminal history
category of VI, based on its application of the Career Offender provision.

5
probation, and that it had been five years since Hankerson had
been sentenced for the predicate offenses. (App. 35-36.)
Considering the “totality of the circumstances,” the Court found
that the Career Offender guidelines overstated Hankerson’s
criminal history, and it departed downward, deciding that a
criminal history category of IV (instead of VI) and offense level
of 29 (instead of 31) was appropriate. The Court calculated the
resulting range at 121-151 months, and indicated to defense
counsel that it would next “hear you on leniency of sentence.”
(App. 37.)

Defense counsel then addressed circumstances relevant
to the sentencing factors. He discussed the fact that Hankerson
was only 21 when he committed the predicate offenses and only
25 for the instant offense. He noted that Hankerson had already
been on house arrest for three years. Counsel discussed the
personal tragedy Hankerson had experienced in his youth,
including his mother’s death when he was nine, being shot by
his brother when he was 12, and the recent death of his brother
due to heart failure. Counsel explained that the death of
Hankerson’s mother when he was so young had a profound
effect on him, causing him to “go into a shell[,] becoming
learning disabled and having trouble in school and dealing with
society.” (App. 38.) Counsel also pointed out the more positive
aspects of Hankerson’s life, including his devotion to his four
children and his five-year history of employment as a barber.
He concluded by emphasizing Hankerson’s acceptance of
responsibility, and asking for a sentence of the five-year
statutory mandatory minimum.

The District Court then discussed the advisory nature of
the guidelines, and that the Court’s discretion would be
exercised with reference to the guidelines calculation and the
“other sentencing goals set forth by the Sentencing Reform
Act.” (App. 41.) The Court then listed several of these goals
(see App. 41), and proceeded to apply the sentencing factors to
the facts of this case:

I have carefully read, as counsel has noted,
the presentence report, as well as the whole
history of Mr. Hankerson’s life, as has been

6
 indicated by counsel here today. . . . Having done
all of that, I see that the defendant is, indeed, 27
years of age or 28 at this time, but he does have at
least five prior arrests for drug-related offenses,
although as we indicated only two convictions,
two felony convictions back in 1997. It has been
some time since he was arrested for those actions
which led to his convictions later on in 2000 and
his sentencing in 2000.

I see that he has received the benefit of
probation on several occasions apparently to no
avail. He continued to engage in the illegal
activity of possession and possession with intent
to distribute drugs. Probation has done no good
for Mr. Hankerson in the past.

At the time of this particular event, he was
in possession of a tremendous amount of drugs
even if you were to consider only the amount of
drugs for which he pled guilty to. Through his
attorney, he indicates I should have leniency
because he has four children. However, the very
poison that poisons the children of our society is
what he was peddling, and that was heroin. I look
upon that as a very serious offense.

I understand he had some personal tragedy
in his life, and I do take that into consideration
where to sentence him within the range, but I
think that the range that is now indicated, having
done the calculations that I did earlier at the level
29, I think is appropriate in this matter.

(App. 40-42.)

The Court then sentenced Hankerson to the bottom end
of the revised advisory guidelines range, 121 months’
imprisonment.

II.

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 Hankerson challenges his sentence as unreasonable. In
evaluating the reasonableness of a sentence imposed by the
District Court, this Court engages in a three-stage inquiry. See
United States v. Cooper, 437 F.3d 324 (3d Cir. 2006). First, we
must determine whether the District Court “calculate[d] the
correct guidelines range applicable to a defendant’s particular
circumstances.” Id. at 330. Second, we must evaluate whether
the trial court gave “meaningful consideration” to the factors
listed in 18 U.S.C. § 3553(a) and to “any sentencing grounds
properly raised by the parties which have recognized legal merit
and factual support in the record.” Id. at 329, 332. Third, if we
determine that the District Court did meaningfully consider the
§ 3553(a) factors, we conclude our review by “ascertain[ing]
whether those factors were reasonably applied to the
circumstances of the case.” Id. at 330. In this last step, we apply
a deferential standard, “the trial court being in the best position
to determine the appropriate sentence in light of the particular
circumstances of the case.” Id. We also note that the party
challenging the sentence bears the burden of establishing its
unreasonableness, and that a within-guidelines sentence is more
likely to be reasonable than one that falls outside the guidelines
range. Id. at 331-32.

Hankerson takes issue with the District Court’s handling
of steps two and three, describing his sentence as both
procedurally and substantively unreasonable. In terms of
procedural unreasonableness, Hankerson claims that the District
Court failed to give meaningful consideration to the kinds of
sentences available (18 U.S.C. § 3553(a)(3)); to his history and
circumstances (18 U.S.C. § 3553(a)(1)); to what he terms the
“rehabilitative purpose of sentencing,” which he finds in 18
U.S.C. § 3553(a)(2)(D); and to the instruction of 18 U.S.C. §
3553(a) that the court “shall impose a sentence sufficient, but
not greater than necessary” to serve the listed purposes of
sentencing. 18 U.S.C. § 3553(a).

A.

We find no merit in Hankerson’s objections to the
“procedural reasonableness” of his sentence. The District Court

8
began by determining that Hankerson was subject to the Career
Offender enhancement, and the Court calculated the
corresponding guidelines range of 188 to 235 months. (App. 33-
34.) The Court then considered and granted defense counsel’s
motion for a downward departure, finding that the Career
Offender provision overstated the defendant’s criminal history,
especially in light of the Court’s observation that “unlike other
career offenders that come before this Court, [defendant has]
never served any prison term before.” (App. 35.) The District
Court assessed Hankerson at offense level 29 (as opposed to 31)
and criminal history category IV (as opposed to VI), resulting in
a guidelines range of 121-151 months.

Next, contrary to Hankerson’s assertions, we find that the
District Court did meaningfully consider the § 3553(a) factors.
In terms of the “kinds of sentences available,” we first note that
there is a mandatory five years’ imprisonment for a violation of
21 U.S.C. § 841(b)(1)(B), constraining the District Court’s
discretion in this regard. And although we disagree with
Hankerson that the term “the kinds of sentences available” refers
to differences in length of sentence, as opposed to differences in,
as it were, kind of sentence, we do note that here, the District
Court did explicitly consider the length of the appropriate prison
term: after departing downward from the originally applicable
guidelines range of 188-235 months to 121-151 months, he
asked defense counsel for further arguments on “leniency of
sentence.” (App. 37.) After hearing such arguments, the Court
rejected counsel’s request for the five-year statutory minimum,
noting that “although the guidelines are no longer mandatory,”
the revised guidelines range “is appropriate in this matter.”
(App. 41, 42.) Thus, the record does reflect meaningful
consideration of this factor.

Furthermore, the District Court did consider Hankerson’s
history and circumstances, as required by 18 U.S.C. §
3553(a)(1). The Court heard defense counsel’s narrative of
Hankerson’s troubled past, and commented that although he had
experienced “some personal tragedy in his life, . . . [the Court
believed] that the range that is now indicated . . . is appropriate
in this matter.” (App. 42.) As for Hankerson’s argument that the
District Court did not consider the possibility that his substance

9
abuse contributed to his earlier criminal history, we could not
and will not fault the District Court in this regard for two
reasons: first, defense counsel did not make this argument or ask
the Court to consider this connection, and secondly (and perhaps
in explanation for defense counsel’s failure to make this
argument), this Court notes that by Hankerson’s own account,
his substance abuse ended in 1996, while the offenses exposing
him to the Career Offender provisions did not occur until 1997.

Next, Hankerson claims that the sentencing court gave
inadequate consideration to the “rehabilitative purpose” of
sentencing, referring to 18 U.S.C. § 3553(a)(2)(D). However,
although this sentencing factor is the one which most directly
addresses the sentencing goal of rehabilitation, see Rita v.
United States, No. 06-5754, 2007 WL 1772146, at *6 (U.S. June
21, 2007), it does not refer to a general concept of
“rehabilitation” as such, but to the more specific need “to
provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment . . . .” 18
U.S.C. § 3553(a)(2)(D). By his own account, however,
Hankerson was employed as a barber when he was arrested for
trafficking in narcotics, and he also submitted evidence that his
employer would consider him for re-employment at the
conclusion of his sentence; vocational training was thus not the
Court’s primary concern. In addition, medical treatment for
substance abuse addiction was unnecessary as Hankerson stated
that his drug use ceased in 1996. As for Hankerson’s contention
that the fact that he overcame a drug addiction and held a steady
job as a barber shows that a shorter sentence would have better
served the statute’s rehabilitative purpose, he misreads the plain
meaning of the statute; 18 U.S.C. § 3553(a)(2)(D) refers to the
possibility of providing a person convicted of a crime with
training and correctional treatment, not with shortening a
sentence because a person is not in need of such things.

Finally, Hankerson argues that the District Court did not
explain why the sentence imposed constituted the minimally
sufficient sentence. As we recently explained in United States
v. Charles, 467 F.3d 828 (3d Cir. 2006), this argument must fail:
“[b]y demanding that the Court assume the burden of proving
that his sentence is not unreasonable, [appellant] attempts to flip

10
the reasonableness requirement on its head. We have held that
the defendant bears the burden of proving that the sentence was
unreasonable.” Id. at 833 (citation omitted; first and last
emphasis added).

B.

Turning to Hankerson’s contention that his sentence was
“substantively unreasonable,” that is, that the District Court
failed to reasonably apply the § 3553(a) factors to the facts of
this case, we reject this argument as well. As explained above,
after granting a downward departure due to his determination
that applying the Career Offender enhancement overstated
Hankerson’s criminal history, the District Court explicitly
considered the five-year gap between the offenses for which
Hankerson was convicted; that he continued to engage in illegal
activity while on probation; the large quantity of drugs involved;
the effect of drugs on society; and the “personal tragedy” in
Hankerson’s life. (App. 41-42.) In light of these factors, the
District Court determined that the revised guideline “range that
is now indicated . . . is appropriate in this matter,” and sentenced
Hankerson to the lowest end of the range, 121 months. (App.
42-43.) Considering our deferential posture here, the fact that
the sentencing court chose the lowest end of an already lowered
guidelines range, and the fact that a within-guidelines sentence
is more likely to be reasonable than a non-guidelines sentence,
see Rita, 2007 WL 1772146, at *6, we cannot conclude that the
District Court acted outside its “broad discretion” in imposing
this sentence. Cooper, 437 F.3d at 330 n.9. The District Court
reasonably applied the sentencing factors to the facts of this
case.

III.

Ineffective assistance of counsel claims are generally not
considered on direct appeal, but in a collateral proceeding. See
United States v. Haywood, 155 F.3d 674, 678 (3d Cir. 1998).
Nevertheless, “[w]here the record is sufficient to allow a
determination of ineffective assistance of counsel, an
evidentiary hearing to develop the facts is not needed,” and the

11
 issue can be resolved on direct appeal. United States v.
Headley, 923 F.2d 1079, 1083 (3d Cir. 1991).

There are two components to an ineffectiveness claim.
First, the defendant must show that counsel’s performance was
deficient, that is, that “counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment.” Strickland v. Washington,
466 U.S. 668, 687 (1984). In assessing counsel’s performance,
the reviewing court must be “highly deferential,” and “indulge
a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound
trial strategy.” Id. at 689. (citation and internal quotation
omitted). It is “only the rare claim of ineffectiveness of counsel
that should succeed under the properly deferential standard to be
applied in scrutinizing counsel’s performance.” United States
v. Gray, 878 F.2d 702, 711 (3d Cir. 1989). If a defendant
succeeds in satisfying the first component, he must then also
show prejudice, that is, “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. A
reasonable probability is “a probability sufficient to undermine
confidence in the outcome.” Id. In the sentencing context,
prejudice exists where the deficient performance affected a
defendant’s sentence. See, e.g., Glover v. United States, 531
U.S. 198, 203-04 (2001) (holding that any increase in sentence
resulting from deficient performance can constitute prejudice).

Hankerson first argues that counsel’s performance was
deficient for pursuing the argument that his 1997 offenses
should be treated as related, despite the fact that both the plain
language of the commentary to the guidelines and Third Circuit
precedent5 made clear that this argument was without merit.

5
The commentary provides, in part:
Prior sentences are not considered related if they were for offenses
separated by an intervening arrest (i.e., the defendant is arrested for the first
offense prior to committing the second offense). Otherwise, prior sentences

12
 Hankerson misconstrues counsel’s argument at sentencing.
After acknowledging the Third Circuit precedent on point on the
relatedness issue, counsel entreated the Court nevertheless to
consider the past sentences as related “in the interest of justice,”
particularly since Hankerson was sentenced for both offenses on
the same date and the sentences were ordered to run concurrent
to one another. (App. 21.) In the alternative, counsel argued for
a downward departure due to the fact that the Career Offender
provisions overstated this defendant’s criminal history. This
two-pronged strategy was certainly reasonable, as counsel
effectively made the point that even if the Court were
constrained to apply the Career Offender guideline in the
Court’s initial computation of the guidelines range, that this case
was an appropriate one for a downward departure. Indeed, the
Court agreed and granted a downward departure on this ground.
In addition, counsel’s successful oral argument in this regard
defeats Hankerson’s claim that counsel should have separately
made a written submission on the issue of a downward departure
for overstatement of criminal history.

Hankerson also faults counsel for failing to present
meaningful mitigation evidence. This argument is rejected. At
the sentencing hearing, counsel related to the Court a host of
relevant mitigation evidence, including Hankerson’s learning
disability and his difficulties in school; his suffering at the
murder of his mother and the recent death of his brother; his role
in the lives of his four children and their need for his continued
presence; and his accomplishment of learning a trade as a barber
and keeping that job for five years. Hankerson argues that this
evidence was not fully developed, asserting, for example, that

are considered related if they resulted from offenses that (A) occurred on
the same occasion, (B) were part of a single common scheme or plan, or
(C) were consolidated for trial or sentencing.
U.S. Sentencing Guidelines Manual § 4A1.2 cmt. n.3 (2003). In United States v.
Hallman, 23 F.3d 821 (3d Cir. 1994), this Court held that if the defendant’s prior
offenses were separated by an intervening arrest, the sentencing court need not consider
the three alternative ways of finding consolidation, contained in the “otherwise” clause.
Id. at 825. Here, Hankerson’s prior sentences qualifying him for sentencing under the
Career Offender provisions were for offenses separated by an intervening arrest.

13
counsel should have presented more information on his
conquering his substance abuse problem and learning a trade.
Considering, however, that Hankerson’s offense of conviction
occurred after he had made these changes in his life, we cannot
say that the balance counsel struck between describing the
positive changes Hankerson had made in his life and not
overemphasizing his success in reforming himself was not a
reasonable strategy. Moreover, as there is no reasonable
probability that the result of the proceeding would have been
different if any of these factors had been further developed at
sentencing, Hankerson cannot show prejudice here.

Finally, Hankerson argues that his counsel’s argument
remained “guidelines-centric,” even though after Booker, the
guidelines were no longer binding. First of all, contrary to
Hankerson’s characterization, counsel did present evidence
tailored to the § 3553(a) factors, and did not argue his
downward departure motions to the exclusion of argument on
those factors. (See App. 37-40.) Secondly, given that “[t]he
advisory guidelines range . . . continues to play an integral part
in sentencing decisions” after Booker, and that a sentence within
the range is more likely to be reasonable than one without, it
was entirely reasonable for defense counsel to focus much of his
argument on the guidelines and on his successful argument for
a downward departure. Cooper, 437 F.3d at 331. As such,
counsel’s approach to sentencing was both reasonable and
effective, and thus fails the Strickland test for ineffectiveness.

Because the record here is sufficient to evaluate the
ineffectiveness claim, and because we find as a matter of law
that counsel’s performance was not constitutionally deficient nor
did it prejudice Hankerson, the ineffectiveness claim is rejected.

IV.

In conclusion, because we find no merit to either of
Hankerson’s challenges to his sentence, we will affirm.
__________________

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