United States v. Sylvan Abney

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 10, 2015 Decided February 5, 2016

No. 14-3074

UNITED STATES OF AMERICA,
APPELLEE

v.

SYLVAN D. ABNEY,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cr-00191-1)

Rachel Murphy argued the cause for appellant. With her on
the briefs were Brent Gurney and Emily Stark.

Jay Apperson, Assistant U.S. Attorney, argued the cause for
appellee. On the brief were Vincent H. Cohen Jr., Acting U.S.
Attorney, and Elizabeth Trosman, Elizabeth H. Danello, and
David B. Goodhand, Assistant U.S. Attorneys.

Before: ROGERS, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Dissenting opinion filed by Circuit Judge BROWN.
 2

ROGERS, Circuit Judge: In Strickland v. Washington, 466
U.S. 668 (1984), the Supreme Court identified the two-prong
objective test for determining whether a defendant’s
constitutional right to the effective assistance of counsel has
been violated. Today that question arises in the context of a
sentencing for possession of 68 grams of crack cocaine that
occurred five days after Congress passed the Fair Sentencing
Act (“FSA”), when Presidential approval was imminent and
virtually assured. Despite knowing that when the FSA was
signed by the President, the mandatory minimum sentence for
his client’s offense would be cut in half, from 10 years to five
years, Sylvan D. Abney’s then-counsel failed to seek a
continuance of sentencing.

At the time of Abney’s scheduled sentencing it was an open
question whether the reductions in the FSA would apply to pre-
FSA conduct where the defendant was sentenced after the FSA
took effect. Yet, as cases in this and other circuits indicate, the
defense Bar was seeking continuances of scheduled sentencings
until the FSA became law. That is because it was at least
reasonably probable — if not more likely still — that courts
would interpret the FSA’s new mandatory minimums to apply
to defendants sentenced after its effective date. In 1984, the
Sentencing Reform Act established that the applicable
Sentencing Guidelines are those in effect at the time of
sentencing, not those in effect at the time of the offense. The
FSA did not change this scheme. Rather, it amended the
Controlled Substances Act to reduce the disparity between the
amounts of crack cocaine and powder cocaine that trigger
mandatory minimum sentences. It also directed the United
States Sentencing Commission to issue new Sentencing
Guidelines consistent with the FSA as soon as practicable and
in no event later than 90 days after the FSA’s enactment. Any
competent criminal defense attorney familiar with federal
sentencing principles would have understood that courts were
 3

reasonably likely to read the FSA’s lower mandatory minimums
to apply to defendants sentenced after its enactment. The
contrary interpretation of the FSA would impute to Congress an
unusual intent: A defendant sentenced for a crack-trafficking
offense after the FSA became law would receive the benefit of
a lower Sentencing Guidelines range based on the reduced
crack-powder disparity, while at the same time that defendant
would be subject to mandatory minimums based on the broad
crack-powder disparity the FSA was meant to narrow.

A continuance would have placed Abney in a position to
benefit from the reduced mandatory minimum were the
interpretation of the FSA favorable to him to prevail. Moreover,
a continuance posed no risk to the public because Abney was
incarcerated pending sentencing. We hold that under
Strickland’s two-prong test counsel’s failure to seek a
continuance of Abney’s sentencing was, in the absence of any
informed strategic choice, objectively unreasonable, and it also
was prejudicial because, but for counsel’s failure, there was a
reasonable probability that a continuance would have been
granted by a “reasonabl[e], conscientious[], and impartial[]”
judge, Strickland, 466 U.S. at 695, thereby reducing Abney’s
mandatory minimum sentence by half.

Our dissenting colleague misapprehends our application of
Strickland’s performance prong and misapplies the prejudice
prong. Under Strickland’s objective standards, counsel was not
required under the performance prong to anticipate how the
Supreme Court would ultimately resolve the issue of
retroactivity. Nor under Strickland’s prejudice prong is the
subjective opinion of the sentencing judge about a continuance
dispositive, for Strickland focuses on what a reasonable judge
would do upon considering the relevant factors, which this court
had identified before Abney’s sentencing and which weigh in
his favor. Our colleague’s other objections lack merit. The
 4

court’s analysis adheres to Strickland’s two-prong approach and
does not collapse the two prongs into one. See Dis. Op. 1–4.
Nor does the court’s analysis do violence to our republican form
of government. See id. at 13.

Accordingly, because Abney was denied his Sixth
Amendment right to the effective assistance of counsel, we
remand the case for resentencing under the FSA.

I.

On December 17, 2007, Abney pleaded guilty to one count
of possession with intent to distribute more than 50 grams of
cocaine base (commonly known as crack cocaine), in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). Under the plea
agreement, if the government determined Abney provided it
with “substantial assistance,” then the government would ask the
district court to depart from “either the Sentencing Guidelines or
any applicable mandatory minimum sentence established by
statute.” Otherwise the mandatory minimum sentence for
Abney’s offense under the Controlled Substances Act was 10
years’ imprisonment. Once the government determined Abney’s
cooperation had proved unsuccessful, the district court
scheduled a sentencing hearing for October 13, 2009. The
government twice moved to continue sentencing between
October 2009 and August 2, 2010, because of Abney’s arrest
and incarceration in Maryland.

Five days before Abney’s scheduled sentencing hearing, the
House of Representatives, on July 28, 2010, joined the Senate in
passing the FSA, Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3,
2010), reducing the mandatory minimum for Abney’s offense by
half, from 10 to five years. The drug amounts triggering
mandatory minimums for crack-trafficking offenses in the
Controlled Substances Act were increased from 5 grams
 5

to 28 grams for the five-year minimum, and from 50 grams to
280 grams for the 10-year minimum. See FSA § 2(a), 124 Stat.
at 2372 (amending 21 U.S.C. § 841(b)(1)(A)(iii), (b)(1)(B)(iii)).
Congress’s passage of this landmark sentencing reform was
widely publicized, and it was well known that the President
would promptly sign the legislation.1 Pursuant to Article I,
Section 7 of the United States Constitution, the President had
only 10 days (excepting intervening Sundays) upon presentment
to sign the bill into law. U.S. CONST. art. I, § 7. The President
signed it promptly on August 3, 2010.

Abney’s counsel was aware that the FSA had passed both
houses of Congress and believed that it “w[ould] soon be in
place.” Def.’s Mem. in Aid of Sentencing at 2 n.1 (July 28,
2010). In his sentencing memorandum, Abney’s counsel wrote:

As an indication of the unfairness in sentencing in
cases like Mr. Abney’s, counsel would note that new
penalties for cocaine base will soon be in place, as the
House and Senate have approved legislation reducing

1
See, e.g., Jim Abrams, Congress Passes Bill to Reduce
Disparity in Crack, Powder Cocaine Sentencing, WASH. POST, July
29, 2010, at A09; Erik Eckholm, Congress Moves to Narrow Cocaine
Sentencing Disparities, N.Y. TIMES, July 29, 2010, at A16; Press
Release, The White House Office of National Drug Control Policy,
Congress Passes Monumental Fair Sentencing Act and Restores
Fairness to Cocaine Sentencing (July 28, 2010) (expressing
Administration support for the FSA bill after it passed both houses of
Congress); Press Release, Department of Justice, Statement of the
Attorney General on Passage of the Fair Sentencing Act (July 28,
2010) (congratulating House of Representatives on passing the FSA);
Press Release, Department of Justice, Statement of the Attorney
General on Senate Judiciary Committee’s Approval of the Fair
Sentencing Act (Mar. 11, 2010) (applauding Senate Judiciary
Committee’s approval of bill that would become the FSA).
 6

the powder/crack disparity to 18 to one. Under those
guidelines 28 grams of crack would trigger the 5 year
mandatory; it would take 280 grams to trigger the 10
year mandatory.

Id. Counsel also contemplated that the FSA might be applied to
benefit Abney. In the same memorandum, he wrote: “[W]e
would note that absent some retroactivity, Mr. Abney will be
much more harshly punished than those committing and
convicted of the same crime in the near future. He also will be
effectively deterred longer than others.” Id. at 2 (emphasis
added). Counsel failed to mention — and, it seems, failed to
consider — a core feature of the federal sentencing scheme
under the Sentencing Reform Act of 1984, Pub. L. No. 98-473,
§ 212(a)(2), 98 Stat. 1837, 1989–90: that the applicable
Sentencing Guidelines are those in effect at the time of
sentencing, not those in effect when the offense was committed.
18 U.S.C. § 3553(a)(4)(A)(ii). As a consequence, counsel
apparently overlooked an interpretation of the FSA courts were
reasonably likely to adopt and thought, erroneously, that
retroactivity would require “subsequent legislation,” Sentencing
Tr. at 6. So, counsel did not seek a continuance of Abney’s
sentencing date for any duration.

On August 2, 2010, the district court sentenced Abney to
the 10-year mandatory minimum term of imprisonment. The
court, however, lamented that outcome. At the sentencing
hearing, it observed that, “[i]f the Court had some discretion, I
probably would give you a sentence [of] . . . somewhere less
than 120 months. I mean I wouldn’t give you 60, but it would
be somewhere in between . . . .” Id. at 7. The prosecutor
acknowledged that the government “[wa]s aware of the new
legislation that recently passed that certainly defense may raise
if he were at a different time[, which] might change [Abney’s]
fate; but as of now that is not retroactive . . . .” Id. at 5
 7

(emphasis added). Abney’s counsel offered no response beyond
suggesting that perhaps Abney’s sentence “will be revisited with
retroactivity down the road.” Id. at 6. The district court noted,
however, that “Congress, for whatever reason . . . has also
decided that retroactivity is not out the door.” Id. at 7.

The next day — August 3, 2010 — the President signed the
FSA into law. As a result, the 100-to-1 crack-to-powder
sentencing disparity was lowered to 18-to-1, and the mandatory
minimum sentence for possession with intent to distribute 68
grams of crack cocaine — Abney’s offense — was reduced from
10 years to five years. The Sentencing Commission was
required to promulgate new Sentencing Guidelines “as soon as
practicable, and in any event not later than 90 days after the date
of enactment” of the FSA. FSA § 8, 124 Stat. at 2374 (codified
at 28 U.S.C. § 994 note). The Commission did so on a
temporary basis in Amendment 748, which became effective on
November 1, 2010. U.S. SENTENCING GUIDELINES MANUAL
app. C (2015) (Amendment 748). On April 6, 2011, the
Commission made the amendment permanent. Id. app. C
(Amendment 750) (effective Nov. 1, 2011); see also id.
§ 2D1.1(c). Then, on June 30, the Commission made retroactive
the portions of Amendment 750 relevant to the crack-powder
disparity. Id. app. C (Amendment 759) (effective Nov. 1, 2011);
see also id. § 1B1.10(d). Subsequently, on June 21, 2012, the
Supreme Court held in Dorsey v. United States, 132 S. Ct. 2321
(2012), that the FSA’s new mandatory minimums applied to
offenders who committed a crack cocaine offense before August
3, 2010 (when the FSA became law), but were not sentenced
until after that date.

Once the Sentencing Commission made Amendment 750
retroactive, Abney, through new counsel, filed an Unopposed
Motion to Reduce Sentence under 18 U.S.C. § 3582(c)(2) and 28
U.S.C. § 2255. Notably, the motion stated that the government
 8

did not object to a reduction because “although it was well
know[n] that the FSA was to become imminently effective, Mr.
Abney’s counsel should have asked, but did not, to continue Mr.
Abney’s sentencing in order to obtain the benefits of the
amended statute.” Unopposed Mot. to Reduce Sentence at 2–3
(Oct. 3, 2012) (emphasis added). At the motion hearing, the
prosecutor explained, presciently, that the government, after
consultation with the Criminal and Appellate Divisions of the
United States Attorney’s Office for the District of Columbia, did
not oppose the motion because otherwise “the defense could
come back with an argument that counsel was ineffective for
failing to move to delay the sentencing at least one day until the
Fair Sentencing Act was in effect” and there was “significant
litigation risk on that claim.” Mot. Hr’g Tr. at 4, 6 (Apr. 9,
2013) (emphasis added). The prosecutor further advised that in
the government’s view “there is the question of whether the
[district] [c]ourt . . . would have abused its discretion in not
continuing the sentencing date.” Id. at 6. The prosecutor noted
that “there had been fairly widespread attention within the
defense Bar . . . to the fact that the law was going to
change . . . .” Id. at 4. Abney’s new counsel — a federal public
defender — agreed, recounting being unable to “find any other
case like this because frankly most people were continuing the
sentences until after the date [the FSA became effective].” Id.
at 14.

The district court denied Abney’s unopposed motion for
sentence reduction, stating this court’s precedent “made it clear
that the FSA’s lower mandatory minimum sentences do not
apply retroactively to offenders who were sentenced before the
Act became effective on August 3, 2010.” Mem. Order at 3
(Feb. 7, 2014) (citing United States v. Bigesby, 685 F.3d 1060,
1066 (D.C. Cir. 2012)) (emphasis in original). The court
declined to consider Abney’s ineffective assistance claim,
“constru[ing] [the] motion solely as a motion to reduce his
 9

sentence under 18 U.S.C. § 3582(c)(2),” id. at 2 n.2, because
“Abney ha[d] not expressly raised and fully briefed an
ineffective assistance of counsel claim under 28 U.S.C. § 2255,”
id. at 5 n.4.

Abney’s present counsel filed an Unopposed Motion for
Reconsideration, pursuant to Federal Rule of Civil Procedure
59(e), on his ineffective assistance of counsel claim under 28
U.S.C. § 2255. Counsel argued that “[t]here is no conceivable
possible strategy that could cause an attorney to neglect to ask
for a continuance when a law reducing his client’s sentence by
half is immediately forthcoming.” Unopposed Mot. for Recons.
at 8 (Feb. 24, 2014); see also id. at 9–10. The district court
ruled Abney had not satisfied either of Strickland’s prongs: On
performance, counsel’s failure to seek a continuance was not
objectively unreasonable because “it was far from apparent on
the day of [Abney’s] sentencing . . . that the FSA, once enacted,
could apply retroactively to offenders, like Abney, whose
conduct occurred before the FSA’s effective date [for] the FSA
legislation itself contained no retroactivity provision.” Mem.
Order at 2 (Aug. 29, 2014) (emphasis in original). On prejudice,
“it is completely speculative — not ‘reasonably probable’ —
that this Court would have granted a defense motion to continue
the sentencing until some unspecified future date based on the
uncertain applicability of a future law,” id. at 3, especially given
that Abney’s sentencing had already been delayed as a result of
his arrest and incarceration in Maryland, id.

Abney appeals the denial of his Rule 59(e) motion for
reconsideration, and this court granted a certificate of
appealability on the issue of whether sentencing counsel’s
failure to move for a continuance of Abney’s sentencing
constituted ineffective assistance under the Sixth Amendment to
the U.S. Constitution. Order, United States v. Abney, No. 14-
3074 (D.C. Cir. Jan. 13, 2015).
 10

II.

Under Strickland v. Washington, 466 U.S. 668 (1984), to
succeed on a claim of ineffective assistance of counsel,

[f]irst, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable. Unless a defendant
makes both showings, it cannot be said that the
conviction or . . . sentence resulted from a breakdown
in the adversary process that renders the result
unreliable.

Id. at 687. “The proper measure of attorney performance” is
“reasonableness under prevailing professional norms.” Id. at
688. Counsel’s performance is “deficient” when his
representation falls below an objective standard of
reasonableness. United States v. Rodriguez, 676 F.3d 183, 189
(D.C. Cir. 2012). The prejudice prong requires a showing of a
“reasonable probability that, but for counsel’s unprofessional
errors, the result of [his sentencing] would have been different.”
Strickland, 466 U.S. at 694. We first address our standard of
review and then proceed to our analysis of Abney’s claim under
the Strickland test.

A.
Abney appeals the denial of his motion for reconsideration.
Although this court may “normally review district court denials
of Rule 59(e) motions only for abuse of discretion,” Dyson v.
 11

District of Columbia, 710 F.3d 415, 420 (D.C. Cir. 2013),
“[t]here are some situations . . . in which we review the District
Court’s denial of a motion for reconsideration de novo,” id.
“This case presents such a situation,” id., because the district
court first considered the merits of Abney’s ineffective
assistance of counsel argument in denying his motion for
reconsideration, see id. Where a district court denies a motion
for reconsideration on the merits, “we . . . review that decision
de novo.” Patton Boggs LLP v. Chevron Corp., 683 F.3d 397,
402 n.4 (D.C. Cir. 2012).

When the issue of ineffective assistance of counsel has
come before this court in other procedural postures, the court
has purported to remain agnostic on whether the standard of
review of the denial of a Sixth Amendment claim of ineffective
assistance of counsel is de novo or for abuse of discretion. See
United States v. Toms, 396 F.3d 427, 433 (D.C. Cir. 2005). In
those cases, the court has held the appeal failed under either
standard. See, e.g., United States v. McDade, 699 F.3d 499, 506
(D.C. Cir. 2012); accord United States v. Newman, 805 F.3d
1143, 1146 (D.C. Cir. 2015); United States v. Shabban, 782 F.3d
3, 7 (D.C. Cir. 2015). Where this court has found merit to an
ineffective assistance of counsel argument, however, it has not
characterized what occurred in the district court as an abuse of
discretion but rather has based its conclusion upon review that
was, in fact, de novo. For instance, in Payne v. Stansberry, 760
F.3d 10 (D.C. Cir. 2014), the court stated that it was
“review[ing] the district court’s factual findings for clear error
and questions of law de novo,” id. at 13. Similarly, in
Rodriguez, 676 F.3d at 189–92, the court stated only that it was
applying the two prongs of the Strickland test. In both cases, the
court determined for itself whether counsel was
unconstitutionally ineffective. We now make explicit what
these cases imply: we review de novo a denial of an ineffective
assistance of counsel claim.
 12

The court is on firm ground in applying a de novo standard.
The Supreme Court’s analysis in Strickland and its subsequent
ineffective assistance decisions evinces a standard of review
consistent with de novo review. In these cases, the Supreme
Court examines the record independently, with no apparent
deference to the district or state court’s ineffective assistance
analysis. See, e.g., Hinton v. Alabama, 134 S. Ct. 1081,
1087–90 (2014); Missouri v. Frye, 132 S. Ct. 1399, 1408–10
(2012); Strickland, 466 U.S. at 698–700. Virtually all of our
sister circuit courts of appeals apply a de novo standard of
review. See Pham v. United States, 317 F.3d 178, 182 (2d Cir.
2003); United States v. Cross, 308 F.3d 308, 314 (3d Cir. 2002);
United States v. Roane, 378 F.3d 382, 395 (4th Cir. 2004);
United States v. Bass, 310 F.3d 321, 325 (5th Cir. 2002); Mallett
v. United States, 334 F.3d 491, 497 (6th Cir. 2003); United
States v. Fudge, 325 F.3d 910, 923 (7th Cir. 2003); United
States v. Davis, 406 F.3d 505, 508 (8th Cir. 2005); United States
v. Chacon-Palomares, 208 F.3d 1157, 1158 (9th Cir. 2000);
United States v. Orange, 447 F.3d 792, 796 (10th Cir. 2006);
Osley v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014); cf.
United States v. Manon, 608 F.3d 126, 132 (1st Cir. 2010).

B.
To establish deficient performance by counsel under
Strickland’s first prong, a “defendant must overcome the
[strong] presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Strickland, 466 U.S. at 689 (internal quotation marks omitted).
Because “the record does not explicitly disclose . . . counsel’s
actual strategy or lack thereof . . . , the presumption may only be
rebutted through a showing that no sound strategy posited by the
[opposing party, here the government] could have supported the
conduct.” Thomas v. Varner, 428 F.3d 491, 500 (3d Cir. 2005)
(citing Yarborough v. Gentry, 540 U.S. 1, 8 (2003)). The
government suggests on appeal that Abney’s “counsel might
 13

have been worried about the potential adverse ramifications of
new minimums for the bargain [Abney] had struck [in pleading
guilty pursuant to a plea agreement] three years before.”
Appellee’s Br. 23; see also id. at 23–24. In United States v.
Douglas, 644 F.3d 39 (1st Cir. 2011), the First Circuit observed
that “it may well be arguable that — where the earlier and
higher penalty was part of the bargain — the government may
in certain circumstances be entitled to withdraw from the plea
agreement if the bargain is now frustrated by the change in
penalties.” Id. at 45. Further, the government notes, Abney’s
sentencing had twice been postponed because he was
incarcerated in Maryland, so “with the possibility of an upward
variance looming, counsel might have reasonably concluded that
it would be unwise to press the court for yet a third continuance,
believing this might unduly focus the court on the misconduct
which had necessitated the earlier postponements.” Appellee’s
Br. 25.

These proffered strategic rationales are implausible. The
plea agreement on its face is not conditioned on Abney’s
receiving a 10-year prison sentence: the agreement repeatedly
disavows any certainty as to sentencing, and it does not grant the
government the authority unilaterally to withdraw from the plea
agreement should the sentence imposed be less than ten years.
At sentencing the district court was already aware of the
Maryland state charge, which Abney’s counsel noted in his
sentencing memorandum had been dismissed. Further, the
government never indicated to the district court that it would
seek an upward variance. And the district court’s remarks prior
to imposing sentence expressed a preference, in the absence of
the 10-year mandatory minimum, for a Guidelines-range
sentence or a downward departure. On this record, we conclude
that there is no conceivable strategy that would justify the failure
of Abney’s counsel to seek a continuance of sentencing. Rather,
it appears that counsel’s failure stemmed from his unfamiliarity
 14

with the existence of more than one reasonably likely
interpretation of the FSA. Cf. Varner, 428 F.3d at 501.
“[A]bsent a strategic decision by counsel, the ineffectiveness
prong of Strickland turns on whether an objectively reasonable
attorney would have [sought a continuance] because the issue
had a reasonable likelihood of success. ‘In other words, this is
the rare case where both Strickland prongs turn on the same
question, whether there is a reasonable probability that the
outcome of [Abney’s sentencing] would have been different had
this issue been raised.’” Payne, 760 F.3d at 14 (quoting Roe v.
Delo, 160 F.3d 416, 419 (8th Cir. 1998)). Contrary to the
dissent, Dis. Op. 1–4, this observation does not collapse
Strickland’s two prongs into one. Under the performance prong,
the question hinges on the reasonable probability that courts
would adopt a given interpretation of a new statute, while under
the prejudice prong, the question is whether it was reasonably
probable that a continuance would have been granted. The
analysis under each prong remains distinct.

Under the first prong of Strickland, counsel’s performance
is “deficient” when counsel’s representation is not objectively
reasonable, see Rodriguez, 676 F.3d at 189, as measured by the
“prevailing professional norms,” Strickland, 466 U.S. at 688.
The failure of Abney’s counsel to seek a continuance of
sentencing was objectively unreasonable and therefore
unconstitutionally deficient. The FSA’s impending enactment
was so important and widely publicized — and the reasonable
likelihood of its retroactive effect so apparent — that objectively
reasonable counsel would have known about it and the open
retroactivity question, irrespective of what Abney’s counsel
subjectively knew. The FSA’s significant reduction in the
mandatory minimum faced by Abney provided sufficient
grounds to pursue the reasonably likely interpretation that the
reduction would apply to offenders sentenced after the date of
its enactment. Clues regarding retroactivity were present at the
 15

sentencing hearing itself. The district court noted that the
retroactive effect of the FSA was “not out the door” in Abney’s
circumstances, Sentencing Tr. at 7, suggesting there was no need
for additional legislation. The government acknowledged that
the timing of Abney’s sentencing might affect his sentence.
And illustrative of the “prevailing professional norms,”
Strickland, 466 U.S. at 688, the defense Bar was endeavoring to
preserve the chance that criminal defendants might benefit from
the FSA’s lower mandatory minimums by seeking continuances
until after its enactment, as shown in cases where defendants
were similarly situated to Abney. See, e.g., United States v.
Thompson, 721 F.3d 711, 714 (D.C. Cir. 2013); United States v.
Fields, 699 F.3d 518, 521–23 (D.C. Cir. 2012); United States v.
McMahon, 422 F. App’x 523, 524–26 (6th Cir. 2011); United
States v. Spires, 628 F.3d 1049, 1055 (8th Cir. 2011); United
States v. McClendon, 379 F. App’x 898, 899–901 (11th Cir.
2010). Abney’s new counsel — a federal public defender — in
seeking a reduction of sentence “couldn’t find any other case
like [Abney’s] because frankly most people were continuing the
sentences until after [the FSA became effective].” Mot. Hr’g Tr.
at 14 (Apr. 9, 2013). The prosecutor’s comments regarding the
defense Bar were similar. Id. at 4. Yet, counsel for Abney
failed to seek a continuance of sentencing. In these
circumstances, that amounted to a failure to provide “reasonably
effective assistance.” Strickland, 466 U.S. at 687.

On appeal, the government, like our dissenting colleague,
has skewed the performance issue in arguing that Dorsey’s
holding was unforeseeable. See Dis. Op. 1, 7–9; Appellee’s Br.
15–20. The retroactive effect of the FSA, the Supreme Court
observed, was ambiguous because “relevant language in
different statutes argue[d] in opposite directions” and the courts
of appeals had reached “different conclusions” on the import of
those statutes. Dorsey, 132 S. Ct. at 2330–31 (referencing
1 U.S.C. § 109 and 18 U.S.C. § 3553(a)(4)(A)(ii)). What is not
 16

ambiguous is the performance prong issue in Abney’s case. The
issue is not, did Abney receive unconstitutionally inadequate
representation because his counsel failed to seek a benefit for his
client based on an unforeseeable interpretation of the FSA’s
retroactivity? Instead, the performance prong issue is, did
Abney receive unconstitutionally inadequate representation
because counsel failed to seek a benefit for his client based on
one of two reasonably likely but uncertain interpretations of the
FSA’s retroactivity? The interpretation of the FSA adopted in
Dorsey was not a novel invention of the Supreme Court. Prior
to Dorsey, defense attorneys argued — and some courts agreed
— that the FSA’s mandatory minimums applied to pre-FSA
conduct, depending on the date of sentencing. See, e.g., United
States v. Dixon, 648 F.3d 195, 198–203 (3d Cir. 2011); Douglas,
644 F.3d at 42–44. Even prior to congressional passage of the
FSA, defense attorneys who sought sentencing continuances —
including counsel’s fellow federal public defenders — realized
that it was reasonably likely that the date of sentencing would
determine the applicability of the FSA’s lower mandatory
minimums. See, e.g., Thompson, 721 F.3d at 712, 714; Fields,
699 F.3d at 519, 521–23.

Where sentencing benefits are available under existing law,
this court has concluded that counsel is ineffective when he fails
to advocate on his client’s behalf at sentencing. See Rodriguez,
676 F.3d at 191; United States v. Soto, 132 F.3d 56, 59 (D.C.
Cir. 1997). Whether counsel’s representation is deficient due to
misinterpretation of the Sentencing Guidelines or failure to
invoke a salient Guidelines provision, “such drastic missteps
clearly satisfy Strickland’s first test: They amount to errors ‘so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment.’” Soto, 132
F.3d at 59 (quoting Strickland, 466 U.S. at 687). “‘[F]amiliarity
with the structure and basic content of the Guidelines . . . has
become a necessity for counsel who seek to give effective
 17

representation.’” United States v. Gaviria, 116 F.3d 1498, 1512
(D.C. Cir. 1997) (alteration in original) (quoting United States
v. Day, 969 F.2d 39, 43 (3d Cir. 1992)).

In view of counsel’s “overarching duty to advocate the
defendant’s cause,” Strickland, 466 U.S. at 688, Abney’s
counsel could not remain silent when there was a substantial
sentencing benefit — a five-year reduction in the mandatory
minimum — that was reasonably likely to apply to his client if
his sentencing were postponed. Counsel had an obligation to
examine the FSA with enough care to detect what other counsel
already had, namely the reasonable likelihood that courts would
interpret the FSA’s mandatory minimums provision to apply to
defendants sentenced after its effective date. That was one of
two interpretations of the FSA available at the time of Abney’s
sentencing that courts were reasonably likely to adopt. Both
interpretations revolved around the General Saving Statute, 1
U.S.C. § 109, which establishes a presumption against
retroactivity for new criminal laws that reduce penalties in an
earlier statute. The presumption, however, is rebutted if the new
statute expressly or by “fair implication” indicates that Congress
intended it to have retroactive effect. See Warden, Lewisburg
Penitentiary v. Marrero, 417 U.S. 653, 659 n.10 (1974). One of
the available interpretations was that the FSA does not clearly
evince congressional intent to give the FSA’s mandatory
minimums retroactive effect. See Dorsey, 132 S. Ct. at 2339–44
(Scalia, J., dissenting). Counsel’s error here appears to have
been that he assumed this was the only available interpretation
of the FSA and that the FSA could not be fairly read to imply
that Congress intended its mandatory minimums to apply to all
defendants sentenced after its enactment. Hence, counsel
concluded “subsequent legislation” was necessary to render the
FSA’s minimums applicable to Abney. Sentencing Tr. at 6.
 18

The other available interpretation was that the FSA does
fairly imply that Congress wanted its mandatory minimums to
apply to defendants sentenced after its enactment. The FSA
reduced the mandatory minimum sentencing disparity from 100-
to-1 to 18-to-1 for crack and powder offenses, FSA § 2(a), 124
Stat. at 2372, and Congress directed the Sentencing Commission
to “promulgate the guidelines, policy statements, or amendments
provided for in this Act as soon as practicable, and in any event
not later than 90 days after the date of enactment of this Act,”
and to “make such conforming amendments” to the Guidelines
as needed “to achieve consistency with other guideline
provisions and applicable law,” FSA § 8, 124 Stat. at 2374. A
core feature of federal sentencing under the Sentencing Reform
Act of 1984 is that the applicable Sentencing Guidelines are
those in force at the time of sentencing, not at the time of the
underlying offense. 18 U.S.C. § 3553(a)(4)(A)(ii). Reasonably
competent counsel are expected to be familiar with such basic
precepts of the federal sentencing regime. Cf. Rodriguez, 676
F.3d at 191; Gaviria, 116 F.3d at 1512. Familiarity here would
have alerted Abney’s counsel to the unusual result that flows
from interpreting the FSA’s lower mandatory minimums to
apply only to post-FSA conduct. Congress had mandated the
Sentencing Commission to establish new Guidelines based on
an 18-to-1 crack-to-powder ratio so as to promptly end the
sentencing unfairness it rejected in the FSA. Depending on the
Commission’s dispatch, new Guidelines could have gone into
effect any day within 90 days after enactment. Once in effect
the new Guidelines would apply immediately, so that a
defendant sentenced then and thereafter for a pre-FSA crack-
trafficking offense would face a Guidelines range based on the
18-to-1 ratio. Yet, if the pre-FSA mandatory minimums still
applied to such offenders, a defendant subject to a Guidelines
range based on the 18-to-1 ratio would nevertheless face a
mandatory minimum sentence based on the 100-to-1 ratio.
Congress passed the FSA in response to the Sentencing
 19

Commission’s repeated recommendations that the crack-to-
powder ratio be reduced, see Dorsey, 132 S. Ct. at 2328–29, and
it was widely known that the purpose of the FSA was to
eliminate the 100-to-1 disparity, which Congress had declared
unfair, see, e.g., FSA pmbl., 124 Stat. at 2372. Why would
Congress insist on the near-immediate reduction of the 100-to-1
disparity in the Sentencing Guidelines for defendants sentenced
after the FSA’s enactment but leave in place for those same
defendants the old, unfair mandatory minimums? Counsel
would not have had any reason, where the question remained
open, to conclude courts would inevitably embrace an
interpretation of the FSA that preserved the mandatory
minimums when courts had long noted the unfairness of the
100-to-1 disparity. See, e.g., Kimbrough v. United States, 552
U.S. 85, 109–11 (2007).

Counsel was not required to predict which of these
interpretations would ultimately carry the day. He was merely
required to consider the FSA carefully enough to recognize there
was more than one available interpretation courts were
reasonably likely to adopt — one of which would benefit his
client — and to seek a continuance so that his client would
benefit if the favorable interpretation prevailed. “In these
circumstances, reasonably effective counsel would have raised
the issue, if for no other reason than to preserve” the possibility
that Abney could benefit from the FSA’s lower mandatory
minimum. See United States v. Marshall, 669 F.3d 288, 293
(D.C. Cir. 2011).

The government’s new response on appeal misses the mark.
It maintains that Abney’s “counsel cannot be faulted for failing
to anticipate, and act upon, Dorsey’s complex and novel legal
ruling.” Appellee’s Br. 19; see also Dis. Op. 1, 7–9, 13–14.
Such clairvoyance is not the test under Strickland. See
Maryland v. Kulbicki, 136 S. Ct. 2, 4–5 (2015); cf. Brown v.
 20

United States, 311 F.3d 875, 878 (8th Cir. 2002); Bullock v.
Carver, 297 F.3d 1036, 1052 (10th Cir. 2002). Instead, due
diligence required that counsel press available, reasonably likely
interpretations of the FSA in seeking a continuance of his
client’s sentencing. This is not a case where the ultimate
interpretation of the FSA in Dorsey was “unpredictab[le],” as
the government would have it. Appellee’s Br. 17; see also Dis.
Op. 1, 7–9, 13–14. Prior to Dorsey, lower courts reached the
same interpretive conclusion the Supreme Court reached. See
Dorsey, 132 S. Ct. at 2330 (collecting cases). Indeed, according
to some jurists, application of the FSA’s new mandatory
minimums to any defendant sentenced after its enactment was
the “only implication that makes sense,” given the words
Congress chose, United States v. Holcomb, 657 F.3d 445, 456
(7th Cir. 2011) (Williams, J., dissenting from denial of rehearing
en banc), and a different reading would produce “absurd
results,” id. at 461 (Posner, J., dissenting from denial of
rehearing en banc). As these jurists explained, to interpret the
FSA otherwise would be to impute to Congress the puzzling
intent that defendants be sentenced under Sentencing Guidelines
consistent with the new 18-to-1 ratio but under mandatory
minimums based on the old 100-to-1 disparity, which Congress
had deemed unfair. Nor is this a case where counsel had to
predict anything. Abney’s counsel had only to read the law
passed by Congress and consider it in light of an existing
sentencing principle — that the applicable Guidelines are those
in effect at the time of sentencing, not at the time of the
underlying offense — to recognize the reasonable likelihood that
courts would interpret the FSA’s mandatory minimums to apply
based on the date of sentencing.

Of course, “Abney’s counsel could not have known that the
President would sign the FSA the [day after Abney’s scheduled
sentencing]. But this is a quibble, for the record shows that . . .
Abney’s counsel believed that as of July 28 [five days before
 21

Abney’s scheduled sentencing] the law would ‘soon be in
place,’” Appellant’s Br. 22 (citing Def.’s Mem. in Aid of
Sentencing at 2 n.1), and counsel “could have requested a
continuance for no longer than the mere ten days the President
had to sign the bill into law,” id. As Abney rightly notes,
“[w]hile retroactivity tied to the date of sentencing still
presented the question of whether August 3, 2010 (the date of
the FSA’s enactment) or November 1, 2010 (the latest date the
FSA-mandated amended guidelines could have come into
effect) . . . was the significant date, that uncertainty does not
validate counsel’s failure.” Reply Br. 5 n.2 (internal citation
omitted). Objectively reasonable counsel would have sought a
continuance to ensure that Abney was sentenced after the FSA
became law. There was no strategic reason not to, and the
failure to do so was unjustifiable because “it cost the defense
nothing and the possible benefit . . . was undoubtedly
significant,” United States v. Hylton, 294 F.3d 130, 134 (D.C.
Cir. 2002).

Our dissenting colleague’s primary disagreement with this
performance prong analysis is that it demands too much of
defense counsel. Dis. Op. 3–4, 8–9. Not so. As this court has
long acknowledged (see, e.g., Soto, Gaviria, supra), the Sixth
Amendment requires defense counsel to keep apprised of
changes to sentencing law that may affect his client and to
invoke them appropriately. Nothing in the court’s analysis today
would obligate counsel blindly “to pursue any action that might
reasonably benefit the client.” Dis. Op. 3. Instead, Abney’s case
concerns the imminent enactment of watershed sentencing
reform that cut in half the mandatory minimum sentence he was
facing, by five years. Counsel was not only obligated to be
aware of this fact, as Abney’s counsel was, but in the absence of
any strategic considerations, counsel was also obligated to
pursue sentencing benefits arising from available, reasonably
probable interpretations of new sentencing laws. This standard
 22

does not oblige counsel to take into account any and every
possible interpretation. Consistent with professional standards
and constitutional requirements, it reflects what defense counsel
should be doing already. See, e.g., Thompson, 721 F.3d at 714;
Fields, 699 F.3d at 521–23; McMahon, 422 F. App’x at 524–26;
Spires, 628 F.3d at 1055; McClendon, 379 F. App’x at 899–901;
see also Mot. Hr’g Tr. at 14 (Apr. 9, 2013). After all, basic
statutory interpretation is a regular feature of the work of any
reasonably competent defense counsel. And, as discussed, there
are no strategic considerations here to excuse Abney’s counsel’s
failure to act on a reasonably probable interpretation of a statute
that could benefit his client. See Dis. Op. 4, 9–10. Rather,
Abney’s counsel’s approach was guided by a misunderstanding
of the FSA, a failure that stemmed from legal error, not strategic
decisionmaking. To the extent our dissenting colleague does not
believe counsel misunderstood the FSA at all, that objection is
not grounded in Strickland or the facts of Abney’s case but
represents a criticism of the majority’s interpretation of the FSA
in Dorsey. Id. at 13–14.

Congress’s actual passage of the FSA and the imminence of
the President’s signature — as well as the failure of Abney’s
counsel to seek a continuance — distinguish our decisions in
Thompson, 721 F.3d 711, and Fields, 699 F.3d 518. In
Thompson, 721 F.3d at 714–15, the court held that counsel did
not render ineffective assistance when he tried and failed to
secure a continuance of sentencing until after enactment of the
FSA, where passage of that statute was still seven months away
and entirely speculative. Similarly, in Fields, 699 F.3d at
521–23, there was no abuse of discretion when the district court
denied a continuance eight months before the FSA became law,
when its enactment was anything but guaranteed. The same
distinction applies to other cases the government cites. See
Becerra v. United States, Nos. 7:09-CR-79-D, 7:12-CV-265-D,
2013 WL 2285350, at *6 (E.D.N.C. May 23, 2013); Torres v.
 23

United States, Civ. A. No. 3:12-01167, Crim. A. No. 3:09-00110,
2013 WL 1349126, at *3 (S.D. W. Va. Apr. 1, 2013); United
States v. Jeanpierre, No. 07CR439(6), 2012 WL 4898182, at *2
(D. Minn. Oct. 16, 2012); United States v. Richardson, Crim.
No. 08-397, Civ. No. 11-2321, 2011 WL 6003952, at *3 (D.
Minn. Nov. 30, 2011); United States v. Musallet, Nos. 07-20099,
11-2008, 2011 WL 1303305, at *2–3 (D. Kan. Apr. 1, 2011).

C.
Under Strickland’s second, but-for prejudice prong, 466
U.S. at 694, the objective inquiry continues. Importantly, the
Supreme Court has instructed that the prejudice inquiry does
“not depend on the idiosyncracies of the particular
decisionmaker,” id. at 695, but rather requires an appellate court
to consider how a motion for a continuance would have been
evaluated by a hypothetical judge “reasonably, conscientiously,
and impartially applying the standards that govern the decision,”
id.

In United States v. Gantt, 140 F.3d 249 (D.C. Cir. 1998),
this court identified the factors to be weighed by a district court
in considering a motion for a continuance to include:

the length of the requested delay; whether other
continuances have been requested and granted; the
balanced convenience or inconvenience to the litigants,
witnesses, counsel, and the court; whether the requested
delay is for legitimate reasons, or whether it is dilatory,
purposeful, or contrived; whether the defendant
contributed to the circumstance which gives rise to the
request for a continuance; whether the defendant has
other competent counsel prepared to try the case,
including the consideration of whether the other
counsel was retained as lead or associate counsel; [and]
whether denying the continuance will result in
 24

identifiable prejudice to defendant’s case, and if so,
whether this prejudice is of a material or substantial
nature.

Id. at 256 (alteration in original) (quoting United States v.
Burton, 584 F.2d 485, 490–91 (D.C. Cir. 1978)). These factors
weigh in Abney’s favor, and it is reasonably likely that, had a
continuance of sentencing been sought, Strickland’s reasonable,
conscientious, and impartial district court would have granted it,
see Strickland, 466 U.S. at 695.

By the time Abney was scheduled to be sentenced, the FSA
had been passed by both houses of Congress and was mere days
away from the President’s signature. The FSA’s text made it
reasonably likely, even if not a certainty, that courts would
interpret the FSA to apply to offenders like Abney who had yet
to be sentenced. To interpret the FSA otherwise would result in
the same defendant being subject to Guidelines reflecting the
FSA’s reduced crack-powder disparity while still subject to the
old statutory mandatory minimums that Congress had already
found unfair, a result some jurists concluded “would ‘undercut
the bill’s primary objective,’ ‘result in sentencing anomalies
Congress surely did not intend,’ benefit the ‘worst offenders,’
give ‘rise to . . . oddities,’ and ‘not necessarily promote more
equitable outcomes,’” Holcomb, 657 F.3d at 460 (Williams, J.,
dissenting from denial of rehearing en banc) (quoting Abbott v.
United States, 562 U.S. 8, 20–22 (2010)). See Dorsey, 132 S. Ct.
at 2331–35; Holcomb, 657 F.3d at 453–57 (Williams, J.,
dissenting from denial of rehearing en banc); id. at 461–63
(Posner, J., dissenting from denial of rehearing en banc); Dixon,
648 F.3d at 198–203; Douglas, 644 F.3d at 42–44. Under the
FSA, had his sentencing been continued, Abney would have been
subject to a mandatory minimum sentence half as long as the one
under which he was sentenced. Although the district court had
granted the government two previous continuances due to
 25

Abney’s incarceration in Maryland, delay for which Abney bears
responsibility, the other relevant Gantt factors, taken together,
indicate that it was reasonably probable an objectively
reasonable judge would have granted a request to postpone
Abney’s sentencing: the length of the requested delay would
have been finite; the inconvenience to the litigants, witnesses,
counsel, and the district court would have been minimal so far as
the record indicates; the requested delay would have been for
legitimate reasons; Abney would not have contributed to the
circumstances that gave rise to this particular request for a
continuance; and denying the continuance would have resulted
in his identifiable and substantial prejudice. See Gantt, 140 F.3d
at 256.

Our dissenting colleague emphasizes delay in Abney’s
sentencing, Dis. Op. 9–10, but ignores both the balance of the
Gantt factors and that Abney was not at liberty pending
sentencing. Nor is any precedent offered for the novel
proposition, contrary to the Supreme Court’s instruction in
Strickland, that an appeals court should accept the subjective
“assessment,” id. at 12, of a particular district court judge. The
dissent’s approach would replace Strickland’s objective
prejudice analysis with a test that falls somewhere between a
subjective inquiry and a deference doctrine. Additionally, as
reported cases reversing district courts make obvious, the court’s
analysis requiring a remand for resentencing is neither
“discrediting” nor “abusing” the district court. Id.

Finally, it was reasonably probable that if the FSA had
applied, Abney would have received a lower sentence. Prior to
the FSA, a 10-year mandatory minimum constrained the district
court’s sentencing discretion. The FSA halved the minimum,
reducing the mandatory minimum to five years. Given
Congress’s redetermination of the appropriate minimum and its
emphasis in the FSA on promptly lowering sentences for crack
 26

cocaine offenses under revised Guidelines, there is no reason to
conclude that an objective, “reasonabl[e], conscientious[], and
impartial[]” district judge, Strickland, 466 U.S. at 695,
sentencing Abney after the FSA became effective would impose
a prison term of 10 years or more. “On this record, we believe
there is a ‘reasonable probability’ that [Abney] would have
received a lower sentence had his Guidelines range factored in
[the five-year mandatory minimum].” Rodriguez, 676 F.3d at
192 (quoting Strickland, 466 U.S. at 694).

Accordingly, because Abney has shown that his counsel’s
performance at sentencing was objectively unreasonable and that
he suffered prejudice as a result, we reverse the denial of his
motion for reconsideration and remand the case to the district
court for resentencing under the FSA.
BROWN, Circuit Judge, dissenting: It is hard to say whether a
medium or a fortune-teller would be best suited for this
case. The Court’s opinion seems to be one part Back to the
Future, requiring trial counsel to possess a DeLorean, a flux
capacitor and the inventiveness of the fictional Doc Brown in
order to render competent assistance to a client. But it is
another part Zombie Apocalypse, intent on disinterring the
grisly remains of the long defunct approach of purposive
judicial interpretation. Because neither approach is consistent
with precedent and our judicial responsibilities, I respectfully
dissent.

It seems silly to recite again the familiar ineffective-
assistance standard of Strickland v. Washington, 466 U.S. 668
(1984), but circumstances demand clarity. Under the
Strickland framework, a defendant must first establish
“counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. at 687. If so, the defendant must then
demonstrate the deficient performance was prejudicial by
showing “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Wiggins v. Smith, 539 U.S. 510, 534 (2003)
(quoting Strickland, at 694).

Today, the Court replaces this familiar two-part test with
a one-part test of its own making. Under this new version of
Strickland, an attorney’s conduct is ineffective if the attorney
failed to pursue an action that “had a reasonable likelihood of
success.” Maj. Op. at 13. The Court is open about this
elision, calling this “the rare case where both Strickland
prongs turn on the same question, whether there is a
reasonable probability that the outcome of [Abney’s
 2
sentencing] would have been different had this issue been
raised.” Maj. Op. at 13-14.

Examination reveals this novel conception of the
Strickland standard has a limited lineage and, in our circuit, a
common progenitor. Only three circuit court opinions have
ever stated that the two prongs of Strickland operate, in rare
instances, as one. See Etherton v. Rivard, 800 F.3d 737 (6th
Cir. 2015), petition for cert. pending, Docket No. 15-723;
Payne v. Stansberry, 760 F.3d 10 (D.C. Cir. 2014); and Roe v.
Delo, 160 F.3d 416 (8th Cir. 1998). The idea originated in
dicta in Roe, a case in which counsel failed to raise a plain-
error claim on appeal despite what the court found to be a
reasonable possibility that such a claim would succeed under
the circumstances. See 160 F.3d at 420. Counsel could not
recall why the claim had been omitted and stated that,
whatever the reason, it was not a strategic decision. Id. at
418-19.

This Court picked up the idea sixteen years later, in an
opinion authored by the same judge writing for the majority
today. Payne, 760 F.3d 10 (D.C. Cir. 2014). Citing only
Roe’s diktat for support, this Court professed to have found
another “rare case” in which the two prongs of Strickland
mean the same thing. Payne, 760 F.3d at 14. The Court
recycles the same language today—raising the curious
question of how the “rare” cases in which the Strickland
standard conveniently reduces itself to a one-part efficacy test
has occurred twice in little more than a year. Is there now a
reasonable possibility this rarity will soon become routine?

The single-prong Strickland test has a shallow
provenance for good reason. It is an elision of an important
constitutional test that results in substantively different
outcomes. The Court imports the reasonable probability
 3
standard of Strickland’s second part into its first part. Under
this novel formulation, a defendant who satisfies the second,
prejudice prong of Strickland will always satisfy the first,
objective-standard prong of Strickland, because whether an
attorney’s conduct fell below a professional standard depends
on whether the attorney took every step that had some
reasonable possibility of success for the client. By collapsing
Strickland into this single step, the Court transforms the
objective standard of Strickland into a retroactive assessment
of the “rightness” of a defendant’s outcome. Defendants who
could have had better outcomes if their counsel had made
different arguments will, by inference, have received
ineffective assistance. Under the Court’s approach, a lawyer
is obligated to pursue any action that might reasonably benefit
the client. Failing to do so constitutes unreasonable attorney
conduct, and hence, it amounts to constitutionally ineffective
assistance.

This is not the approach endorsed by Strickland.
Strickland’s second prong is about whether a defendant was
prejudiced by his counsel’s ineffective assistance. But a court
may reach the second prong only if counsel’s performance is
adjudged ineffective under an objective standard. That’s
because the second prong of the Strickland test is remedial in
natureit’s not about whether there was a constitutional
violation but about what we do after we know there was a
constitutional violation. If a defendant’s outcome would have
been the same, we say the constitutional violation was
harmless. If there is a “reasonable probability” the outcome
would have been different, then we take some type of action
to remedy the constitutional problem.

Today the Court says the existence of a “reasonable
probability” of a different outcome actually answers the first
prong of Strickland: whether there was a constitutional
 4
violation in the first place. Never mind that prong one of
Strickland has its own standards for determining whether a
constitutional violation occurs—standards that focus entirely
on the realm of reasonable legal strategies, not the range of
preferable legal outcomes. Strickland has always been about
acknowledging the strategic aspect of lawyering. It is a
commonplace observation that a lawyer simply cannot predict
what will and will not work. Defendants have no right to
counsel with flawless judgment; rather, the purpose of the
right to effective counsel “is simply to ensure that criminal
defendants receive a fair trial.” Id. at 689.

The worst part of the Court’s new, amalgamated
Strickland standard is that it doesn’t work. Trial counsel
often face multiple strategic options, each presenting a
reasonable possibility of benefitting the client’s interests, but
also presenting a reasonable possibility of harming the client’s
interests. For example, in most circumstances, when defense
counsel considers whether to present a witness, there is a
reasonable possibility the witness will benefit the client’s
case, but also some possibility the witness will be a dud or
even diminish the client in the jury’s eyes. If we second-
guessed all of counsel’s decisions on the basis of whether they
might have had a reasonable possibility of changing an
outcome, then nearly any decision that doesn’t pan out would
amount to ineffective assistance. And that is exactly what
Strickland says we shouldn’t do: “Judicial scrutiny of
counsel’s performance must be highly deferential,” and
“every effort [must] be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689.
 5
So applying the Strickland standard in the right order, we
should ask whether Abney’s counsel rendered ineffective
assistance in the first place—whether it was objectively
unreasonable for counsel not to seek a continuance of
Abney’s sentencing on the basis of the pending Fair
Sentencing Act.

To start, we know Abney’s counsel was aware of the Fair
Sentencing Act, which was then awaiting the President’s
signing decision. Abney’s counsel noted at sentencing that
“new penalties will soon be in place” that would leave Abney
“much more harshly punished than those committing and
convicted of the same crime in the near future.” J.A. 18. But
Abney’s counsel did not think Abney could benefit from the
new law’s more lenient penalties “absent subsequent
legislation making [the Fair Sentencing Act]
retroactive.” J.A. at 25. In other words, Abney’s counsel was
aware of the developing legal changes, and he considered the
law’s applicability to Abney. Cf. Torres v. United States,
2013 WL 1349126, at *3 (S.D. W.Va. Apr. 1, 2013) (finding
counsel sufficient despite no evidence counsel actually knew
of the Fair Sentencing Act’s impending enactment). Counsel
concluded, however, that it would take some form of
retroactivity to make Abney’s pre-Act crimes eligible for
post-Act penalties, a view of the Act that both the government
and the district court shared.

Congress enacted the Fair Sentencing Act of 2010, Pub.
L. No. 111-220, 124 Stat. 2372, without any explicit provision
addressing whether and how pre-Act offenders would be
treated under the law. The language of the Act was forward-
looking. Even the Court acknowledges today that “[t]he
retroactive effect of the [Fair Sentencing Act] was
ambiguious” as enacted. Maj. Op. at 15.
 6
After President Obama signed the Act into law, courts
confronted the question of the Act’s possible
retroactivity. This Court agreed with every other circuit court
to address the issue: “there [was] simply ‘no evidence that
Congress intended the [Fair Sentencing Act] to apply to
defendants who had been sentenced prior to the August 3,
2010 date of the Act’s enactment.” United States v. Bigesby,
685 F.3d 1060, 1066 (D.C. Cir 2012). For defendants who
committed their crimes before that date but were
sentenced after enactment, however, the results were more
mixed.

Three circuits concluded defendants who committed their
crimes before the Act took effect could not take advantage of
its lower sentences, even if they were sentenced after the Act
was implemented. United States v. Fisher, 635 F.3d
336, 339–340 (7th Cir. 2011) (holding Act does not apply to
those who committed their crimes before August 3,
2010); United States v. Sidney, 648 F.3d 904, 910 (8th Cir.
2011) (same); United States v. Tickles, 661 F. 3d 212, 215
(5th Cir. 2011) (per curiam) (same). In his statement
respecting the denial of en banc rehearing, Judge Easterbrook
eloquently explained the reasoning behind this view. United
States v. Holcomb, 657 F.3d 445 (7th Cir. 2011). Prior to its
decision in Dorsey, the Supreme Court “never held any
change in a criminal penalty to be partially retroactive.” Id. at
446. Retroactivity had historically been an all-or-nothing
proposition. Criminal statutes with retroactive application
applied to all individuals regardless of the date on which they
committed their crimes, while prospective statutes applied
only to individuals who committed their crimes after the
effective date of the new legislation. See id. This
understanding of retroactivity did not depend on the date of
sentencing, “which reflects how long it took to catch a
 7
criminal, and the state of the district judge’s calendar, rather
than principles of deterrence or desert.” Id. at 447.

Three other circuits concluded that pre-Act offenders
could take advantage of the Act’s lower mandatory
minimums. These circuits adopted a “partial retroactivity”
approach, in which the Act applied retroactively to those who
committed their offenses before its enactment but were
sentenced afterwards. These “partial retroactivity” circuits,
however, could not agree on which date would make the
critical difference for sentencing purposes. The First Circuit
held the Act’s new mandatory minimums applied only to
defendants sentenced after the new sentencing guidelines
went into effect on November, 1, 2010. United States v.
Douglas, 644 F.3d 39, 46 (1st Cir. 2011). But in the Third
and Eleventh Circuits, defendants received the benefit of the
Act’s new minimums if they were sentenced on or after
August 3, 2010. United States v. Dixon, 648 F.3d 195, 203
(3d. Cir. 2011); United States v. Rojas, 645 F.3d 1234 (11th
Cir. 2011).

“In light of [this] disagreement” among the circuit courts
of appeals, the Supreme Court took up the Act’s retroactivity
question, and in a 5-4 decision, held “the Fair Sentencing
Act’s new, lower mandatory minimums apply to the post-Act
sentencing of pre-Act offenders.” Dorsey v. United States,
132 S. Ct. 2321, 2335 (2012). The Court itself acknowledged
the partial-retroactivity interpretation was not obvious.
Rather, the “timing issue…is difficult in part because relevant
language in different statutes argues in opposite directions.”
132 S. Ct. at 2330. Five members of the Court resolved the
statutory chaos through a matrix of “six considerations,
[which] taken together, convince us that Congress intended
the Fair Sentencing Act’s more lenient penalties to apply to
 8
those offenders whose crimes preceded August 3, 2010, but
who are sentenced after that date.” Id. at 2331.

Given that background, it is impossible to say Abney’s
counsel performed incompetently by not asking for a
continuance of Abney’s sentencing. At the time Abney’s
counsel decided whether to seek a continuance, no court had
yet enunciated the theory of partial retroactivity. Even when
that theory emerged, federal courts divided over whether it
was a proper interpretation of the Act. Moreover, the
Supreme Court was itself divided over the theory, by a 5-4
vote. And even for those justices in the majority, the partial-
retroactivity interpretation was, at best, a means of sorting out
a tangle of statutory language pulling in different directions.
In contrast to what the Court says, then, counsel here neither
ignored established guidelines, United States v. Soto, 132 F.3d
56, 59 (D.C. Cir. 1997) (holding counsel was ineffective for
ignoring a relevant Guideline provision), nor failed to
demonstrate familiarity with settled legal principles, Thomas
v. Varner, 428 F.3d 491, 501 (3rd. Cir. 2005) (stating courts
routinely declare counsel ineffective when counsel fails to
present a strong defense because of unfamiliarity with clearly
settled legal principles), nor ignored established case
precedent interpreting guidelines, United States v. Gaviria,
116 F.3d 1498, 1512 (D.C. Cir. 1997).

Here, counsel did not face “two reasonably likely but
uncertain readings of the [Fair Sentencing Act],” as the Court
insists. Maj. Op. at 15. Counsel had every reason to believe
retroactivity would continue to be the all-or-nothing concept it
had always been—retroactive or prospective, but nothing in
between. See Holcomb, 657 F.3d at 446 (statement of
Easterbrook, J.). It is irrelevant, as the Court states, that
before Dorsey, some “defense attorneys argued—and some
courts agreed” that the Fair Sentencing Act was susceptible to
 9
a novel, partial-retroactivity interpretation. Maj. Op. at 15.
Those arguments arose well after the time by which Abney’s
counsel would have had to decide whether to seek a
continuance. Counsel’s legal judgment cannot be impugned
on the basis of creative arguments that were yet to be made.

The Court asserts the outcome of Dorsey was
“reasonably likely,” and therefore counsel should have taken
steps to ensure that his client’s interests were protected if this
“reasonably likely” interpretation ultimately carried the
day. Yet the analysis offers no support for its view that
the Dorsey result was “reasonably likely” aside from its own
say-so. The best the court can muster is the fact that some
other defense counsel were seeking continuances at this time.
This assertion, however, only demonstrates
that some attorneys thought the date of sentencing might be of
subsequent importance, not that all competent attorneys
would think so. A few motions hardly serve as the kind of
professional norm contemplated in Strickland. See 466 U.S.
at 688. Furthermore, we have no comparison of the facts of
these other cases. We do not know if these other defendants
had also been the source of long sentencing delays, as Abney
had been, or whether they had also committed their crimes
long before the Act was even out of committee. We cannot
measure Abney’s counsel’s conduct against the standard of
these other defense attorneys without knowing that those
attorneys found themselves in substantively similar positions.

Not only could Abney’s counsel not have reasonably
predicted the Court’s partial-retroactivity approach in Dorsey,
he was also laboring under the limitations of his client’s
case—which gave him sound, strategic reasons for not
seeking a continuance. Under ordinary circumstances, a short
continuance might be a small ask, but Abney’s was no
ordinary case: by the time of his scheduled sentencing
 10
hearing, he had already been avoiding sentencing for nearly
three years. After initially facing a ten-year mandatory
minimum sentence, Abney had entered a plea agreement with
the government in which he agreed to provide investigative
assistance in exchange for his release with supervision. See
Appellee Br. 3–4. Thus, he could, through his own initiative,
dramatically reduce his sentence. But Abney could not bring
himself to fulfill the conditions of his release: he tested
positive for cocaine and marijuana; he “waterloaded” his
urine samples in an effort to thwart his mandatory drug
testing; he failed to appear for drug tests; and, ultimately, he
lost contact altogether with supervising law
enforcement. Above all of this, the government never
received any cooperation from Abney. Realizing that they
had been duped, the government obtained a sentencing date of
October 13, 2009. Abney again managed to avoid sentencing,
this time because Maryland authorities arrested and detained
him on charges of attempted first-degree murder. J.A.
11. Abney’s subsequent incarceration in Maryland forced the
district court to postpone his sentencing twice. J.A. 14.

So it was that Abney arrived at his August 2, 2010,
sentencing hearing, having already spent nearly three years—
much of it as a free man—avoiding the imposition of his
sentence. Indeed, it is a mere accident of history that Abney’s
Fair Sentencing Act near-miss is a near-miss at all. Had he
been sentenced according to a more conventional schedule, he
would have needed a continuance of at least many months,
and likely years. A continuance of that kind would certainly
not have been granted. See, e.g., United States v. Fields, 699
F.3d 518, 523 (D.C. Cir. 2012) (trial court did not abuse its
discretion in denying postponement while Act was pending
because pending legislation was too far off to be compelled
consideration at sentencing) (internal citation omitted).
 11
The problems with the Court’s approach do not stop
there. Even if Abney’s counsel had suspected partial
retroactivity would become the rule, on what date would
retroactivity take effect? Would counsel have needed a
continuance of ten days, enough time to allow the law to be
signed? Or a few months, to allow time for new sentencing
guidelines to be written and go into effect? See United States
v. Thompson, 721 F.3d 711, 715 (D.C. Cir. 2013) (affirming
district court’s denial of a continuance and stay of sentencing
several months prior to the Act’s passage); Fields, 699 F.3d at
521 (same). Even the Court does not know how long the
Constitution would require competent counsel to continue the
proceedings. Maj. Op. at 20 (endorsing Abney’s
acknowledgment that whether August 3 or November 1 would
be the relevant date was unclear, and yet holding such
confusion cannot “validate counsel’s failure” to seek a
continuance of indeterminate length).

Even were we to accept that Abney’s counsel performed
ineffectively, Abney would still need to satisfy Strickland’s
second prong by showing “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. Because the effect of Dorsey is to lessen the sentence
of defendants sentenced on or after August 3, 2010, the
prejudice question turns on whether Abney would have gotten
a continuance had his lawyer sought one.

Continuances fall within the discretion of the trial judge,
United States v. Burton, 584 F.2d 485, 490 (D.C. Cir. 1978),
and are reviewed “only to determine whether the judge clearly
abused his discretion.” United States v. Gantt, 140 F.3d 249,
256 (D.C. Cir. 1998). Review must assess “the circumstances
in every case, particularly in the reasons presented to the trial
judge at the time the request is denied.” Ungar v. Sarafite,
 12
376 U.S. 575, 589 (1964) (emphasis added). The Court,
relying on a hypothetical, dispassionate decision-maker—a
“reasonable, conscientious, and impartial district court,” Maj.
Op. at 23—speculates that Abney’s request would have been
granted. In fact, we do not need to speculate about what
would have happened if Abney’s counsel had sought a
continuance: the sentencing judge answered the question in
his opinion below, saying he would have been unlikely to
grant a continuance and further “delay reaching finality on a
three-year-old plea.” J.A. 87. The district court “considered
whether the Fair Sentencing Act could benefit Abney, but
came to the reasonable estimation that “it was unclear that
[the Fair Sentencing Act] would even apply retroactively to
Abney.” Id. The district court concluded it was “completely
speculative—not reasonably probable” that a motion for
continuance to some “unspecified future date” would have
been granted. Id. Given the broad authority district court
judges have to manage their calendars and grant or deny
continuances, the district court’s assessment amounts to a
reasonable exercise of discretion. The Court disagrees. Even
after upending the Strickland standard, the Court can only
make a case for prejudice by discrediting the district court as
“[un]reasonable, [un]conscientious, and [ ]partial.” See Maj.
Op. at 23.

But abusing the district court is still not enough. Rather
than defer to the sentencing judge’s reasonable assessment of
the likelihood of his granting relief, the Court takes yet
another unpredictable step, relying on de novo review.
Whether de novo review applies in these circumstances is a
question this Circuit has left unanswered for nearly thirty
years. See, e.g., United States v. Askew, 88 F.3d 1065, 1071
(D.C. Cir. 1996). Today, the Court decides that question, and
applying de novo review, it concludes that granting a
continuance would have been likely.
 13

At the heart of the Court’s misreading of Strickland is a
misapprehension about the realities of our republican form of
government. The Court seems baffled that Congress would
“insist on the near-immediate reduction of the 100-to-1
disparity in the Sentencing Guidelines for defendants
sentenced after the [Fair Sentencing Act’s] enactment but
leave in place for those same defendants the old, unfair
mandatory minimums.” Maj. Op. at 18. Congress did not
address retroactivity in the Fair Sentencing Act, in all
likelihood, because it could not do so; had the Act taken up
that issue, it may well have never garnered the votes
necessary for passage. In our form of government, legislative
compromise often produces imperfect outcomes. Here, those
imperfections are most evident in the line-drawing problems
caused by the new minimums. But this should not surprise
the Court. Dorsey, in fact, recognizes that there are line-
drawing problems with the application of the new
minimums: pre-Act offenders who were also sentenced pre-
Act remain in prison, serving lengthy sentences premised on a
now-rejected cocaine-to-powder ratio. See 132 S. Ct. at
2335. The only solution for this disparity is a congressional
act making the Fair Sentencing Act retroactive, even for pre-
Act offenders; absent this, there is no way to even out the
ratio-based sentences being served by all offenders.

Instead, the Court attempts to smooth out some of the
disparity on its own, by moving Abney from the old,
discredited sentencing regime into the new one. And it’s not
easy. First, the Court revises the Strickland test, from two
prongs into one. Second, the Court decides to apply de novo
review, forcing an answer to a question unsettled in this
jurisdiction for more than thirty years. I do not doubt that in
its determination to rescue Abney, the Court acts with good
intentions. In Dorsey, the high court acted with similar
 14
motives when it decided to pick and choose among opposing
provisions to make the Fair Sentencing Act’s more lenient
provisions available to a larger number of defendants. That
result might be what Congress should have adopted or would
have enacted had decades of study produced sufficient votes.
Instead, the Supreme Court fashioned an ad hoc measure to
implement its widely-favored policy and in doing so offered
neither rule nor guidance for future cases. If separation of
powers is to have any meaning, the result in Dorsey cannot be
deemed ordinary—certainly not so ordinary that counsel
should be trained to expect it.

Here, trial counsel and the district court discussed, openly
and on the record, that in order to benefit from the Fair
Sentencing Act, Abney would need a legislative fix. Abney
would need Congress to act in order to give him the benefit of
the law. Today, the Court turns that healthy, constitutionally-
grounded presumption on its head: not only did Abney not
need to wait for Congress to make the Fair Sentencing Act
retroactive, but his counsel was incompetent for thinking the
legislature’s involvement would be required. It is no longer
enough for counsel to ask whether the courts have acted to fix
some perceived problem Congress has caused; instead,
counsel must presume both that courts can act and that they
will. The failure to anticipate the “reasonable possibility” of
judicial policymaking is proof of both counsel’s
incompetence and the district court’s lack of
conscientiousness—a result that seems both perverse and
pernicious.