United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 1, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 03-50310
__________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GUS PETER GRAMMAS,
Defendant - Appellant.
___________________________________________________
Appeal from the United States District Court
for the Western District of Texas
___________________________________________________
Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Upon reconsideration, we withdraw our previous opinion, reported at __ F.3d
__, and substitute the following:
Gus Peter Grammas (“Grammas”) appeals the district court’s denial of his 28
U.S.C. § 2255 motion, arguing that his counsel’s performance regarding whether to
stand trial or plead guilty was constitutionally deficient. Though we hold that
Grammas was provided ineffective assistance of counsel, we remand to the district
court for a hearing in order to determine whether that deficiency prejudiced Grammas.
I. FACTS AND PROCEEDINGS
On March 16, 2001, Grammas was convicted of: (1) knowingly altering a Vehicle
Identification Number, in violation of 18 U.S.C. § 511(a)(1); and (2) possession of a
firearm by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1).
Grammas’s trial counsel, Buck Harris (“Harris”), failed to realize (and consequently
failed to notify Grammas) that his prior convictions were crimes of violence. The
Government’s indictment states that one of Grammas’s prior offenses was for burglary
of a building. Previously, Grammas had been convicted of burglary of a habitation—a
crime of violence—which raised his base offense level. Harris failed to confirm that the
prior conviction related to a burglary of a building, and admitted post-conviction that
“the defense did rely on that original contention that this was a burglary of a building.”
The indictment also alleges a prior felony conviction for escape.
Harris argued to the district court his mistaken belief that the firearms offense
should carry a base offense level of 8, not 20. The relevant section of the Sentencing
Guidelines (§ 2K2.1) does not even contain a base offense level of 8. See U.S.
SENTENCING GUIDELINES MANUAL § 2K2.1 (2001). Harris admitted to having used the
wrong section of the Guidelines, and Harris (mis)informed Grammas that he faced only
6 to 12 months if convicted. Grammas was sentenced using a base offense level of 21
(20 from Guidelines § 2K2.1, plus 1 from a prior conviction involving aiding illegal
2
aliens), resulting in a Guidelines range of 70 to 87 months, and a sentence of 70 months
in prison.
1
After exhausting his direct appeals, Grammas filed this § 2255 motion alleging
2
ineffective assistance of counsel. See 28 U.S.C. § 2255. The district court denied the §
2255 motion; this Court granted a certificate of appealability “on the issue whether
[Grammas] received the effective assistance of counsel relative to his decision to stand
trial rather than plead guilty.” This appeal follows.
II. STANDARD OF REVIEW
This Court “review[s] a district court’s conclusions with regard to a petitioner’s §
2255 claim of ineffective assistance of counsel de novo.” United States v. Conley, 349 F.3d
837, 839 (5th Cir. 2003) (citing United States v. Bass, 310 F.3d 321, 325 (5th Cir.2002);
United States v. Faubion, 19 F.3d 226, 228 (5th Cir.1994)).
III. DISCUSSION
A. Section 2255 relief from federal custody
Section 2255 “provides the federal prisoner with a post-conviction remedy to test
the legality of his detention by filing a motion to vacate judgment and sentence in his trial
1
This Court reversed the district court’s restitution order, but otherwise affirmed
its holdings. United States v. Grammas, No. 01-50730, 37 Fed. Appx. 88, 2002 WL
971617, at *1 (5th Cir. May 2, 2002).
2
This Court generally declines to review ineffective assistance of counsel claims
on direct appeal. United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995). Ineffective
assistance of counsel claims are more appropriately brought in a 28 U.S.C. § 2255
motion. United States v. Gordon, 346 F.3d 135, 136 (5th Cir. 2003).
3
court.” Kuhn v. United States, 432 F.2d 82, 83 (5th Cir. 1970). The statute establishes that
a prisoner in custody under a sentence of a court established by Congress “may move the
court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C.
§ 2255. Where there has been a “denial or infringement of the constitutional rights of the
prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate
and set the judgment aside and shall discharge the prisoner or resentence him or grant a
new trial or correct the sentence as may appear appropriate.” Id. (emphases added).
B. Ineffective assistance of counsel under Strickland
To prevail on an ineffective assistance of counsel claim, Grammas must satisfy the
two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). First,
Grammas must demonstrate that counsel’s performance fell below an objective standard
of reasonableness. Id. “We have described that standard as requiring that counsel
‘research relevant facts and law, or make an informed decision that certain avenues will
not be fruitful.’” Conley, 349 F.3d at 841 (citations omitted). Second, Grammas must prove
that he was prejudiced by counsel’s substandard performance. “[T]o prove prejudice, the
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 841-
42. “And, of course, ‘any amount of actual jail time has Sixth Amendment significance,’
which constitutes prejudice for purposes of the Strickland test.” Conley, 349 F.3d at 842
(citing and quoting Glover v. United States, 531 U.S. 198, 203 (2001), and United States v.
Franks, 230 F.3d 811, 815 (5th Cir. 2000) (finding prejudice where defendant was sentenced
4
under Guidelines range of 70 to 87 months instead of the proper 57 to 71 months range)).
Additionally, “[o]ne of the most precious applications of the Sixth Amendment may well
be in affording counsel to advise a defendant concerning whether he should enter a plea
of guilty.” Reed v. United States, 354 F.2d 227, 229 (5th Cir. 1965).
(1) Harris’s performance fell below an objective level of reasonableness.
“Failing to properly advise the defendant of the maximum sentence that he could
receive falls below the objective standard required by Strickland. When the defendant
lacks a full understanding of the risks of going to trial, he is unable to make an intelligent
choice of whether to accept a plea or take his chances in court.” Teague v. Scott, 60 F.3d
1167, 1171 (5th Cir. 1995). “‘By grossly underestimating [the defendant’s] sentencing
exposure . . . , [counsel] breache[s] his duty as a defense lawyer in a criminal case to advise
his client fully on whether a particular plea to a charge appears desirable.’” United States
v. Ridgeway, 321 F.3d 512, 514 (5th Cir. 2003) (alterations in original) (citing and quoting
United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998)). Grammas contends that he was
denied his constitutional right to effective counsel relative to his decision to stand trial
rather than plead guilty. He argues that Harris’s performance was deficient because,
among other things, Harris was unfamiliar with the Sentencing Guidelines and
substantially misstated Grammas’s exposure if he were to be found guilty at trial.
Harris conceded these mistakes. Regarding the prior convictions, the Government’s
indictment states that one of Grammas’s prior offenses was for burglary of a building. In
reality, Grammas had been previously convicted of burglary of a habitation—a crime of
5
violence—which raised his base offense level. Harris failed to confirm that the prior
conviction related to a burglary of a building, admitting that “the defense did rely on that
original contention that this was a burglary of a building.” Even the most basic research
on Grammas’s background would have revealed that the prior burglary was a burglary
of a habitation. The indictment also alleges a prior felony conviction for escape. This
Court decided nearly two years before Grammas’s trial that an escape constitutes a crime
of violence. United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir. 1999). Had Harris realized
that either one of Grammas’s prior convictions was a crime of violence, Harris would have
known that the base offense level would be significantly higher. Harris’s mistaken belief
that Grammas’s prior convictions were not crimes of violence, Harris conceded, “may even
have gone to affect whether or not we negotiated any type of plea agreement or settlement
agreement considering the greater exposure.”
Harris further demonstrated a complete lack of familiarity with the Guidelines. He
admits that he used the incorrect section of the Guidelines, and his argument for a base
offense level of 8 illustrates this lack of understanding. Sentencing Guidelines §
2K2.1—the section under which Grammas was sentenced—does not even contain a base
offense level of 8. See U.S. SENTENCING GUIDELINES MANUAL § 2K2.1 (2001). Harris, based
on his misunderstanding of the Guidelines, advised Grammas that he would, at most, be
3
imprisoned for 6 to 12 months if he were to be convicted. Harris’s assistance fell well
3
The Government’s non-responsive and off-topic brief does not contest
Grammas’s claim that Harris told him his exposure would be 6 to 12 months.
Arguments not made in the briefs are waived. See, e.g., Hobbs v. Hawkins, 968 F.2d
6
below the objective standard of reasonableness required by Strickland.
(2) Whether Grammas was prejudiced by Harris’s deficient performance.
The only remaining issue is whether Grammas was prejudiced by Harris’s deficient
performance. Grammas’s conviction occurred after a unanimous Supreme Court in Glover
rejected the Seventh Circuit’s rule that “a minimal amount of additional time in prison
cannot constitute prejudice.” Glover, 531 U.S. at 203. The Supreme Court noted that,
“[q]uite to the contrary, our jurisprudence suggests that any amount of actual jail time has
Sixth Amendment significance.” Id. (emphasis added). In a recent case this Court
analyzed the prejudice prong by considering whether the petitioner could “demonstrate
a reasonable probability that, but for his counsel’s actions, he would have received a
‘significantly less harsh’ sentence.” Ridgeway, 321 F.3d at 515 (quoting Daniel v. Cockrell,
283 F.3d 697, 706 (5th Cir. 2002)). However, we noted in Ridgeway that Glover “arguably
casts doubt on the ‘significantly less harsh test,’” Ridgeway, 321 F.3d at 515 n.2 (quotations
and citations omitted), and implied that the “significantly less harsh test” only applied in
Ridgeway because Glover does not apply retroactively. Ridgeway, 321 F.3d at 515 n.2. We
hold that Glover abrogates the significantly less harsh test, and that any additional time
4
in prison has constitutional significance. Accord Conley, 349 F.3d at 842 (noting that “of
471, 474 n.2 (5th Cir. 1992).
4
We pause here to recognize the distinction between the federal guidelines and
state sentencing regimes. State sentencing regimes tend to be more discretionary than
the lock-step and predictable federal system. Due to the volatile nature of state
regimes, “practically any error committed by counsel could [result] in a harsher
sentence.” Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993). Thus, we emphasize that
7
course, ‘any amount of actual jail time has Sixth Amendment significance,’ which
constitutes prejudice for purposes of the Strickland test”) (citing and quoting Glover, 531
U.S. at 203, and Franks, 230 F.3d at 815 (finding prejudice where, as here, defendant was
sentenced under Guidelines range of 70 to 87 months instead of the proper range of 57 to
71 months)).
Because Grammas was convicted after Glover was decided, Glover applies to
Grammas’s case. Whether there was a reasonable probability that, but for Harris’s actions,
Grammas would have received a lesser sentence than he did turns on first, whether
Grammas would have pleaded guilty if he knew of the true criminal penalty he faced, and
second, whether a guilty plea would have indeed reduced Grammas’s sentence. As for the
first question, Grammas argues that he suffered prejudice because Harris’s assessment that
Grammas only would face 6 to 12 months imprisonment grossly underestimated
Grammas’s 70-month sentence. Had he known about his greater sentencing exposure,
Grammas maintains, he would have been far more likely to plead guilty (and thereby avail
himself of the Guidelines § 3E1.1 reduction for acceptance of responsibility) rather than to
proceed to trial. See U.S. SENTENCING GUIDELINES MANUAL § 3E1.1 (2001). While it seems
intuitive that a defendant’s ignorance of his potential maximum sentence would affect his
decision whether to enter a plea, we recognize that it is at least plausible that a defendant’s
ignorance could be immaterial to such a decision. For instance, Grammas explains in his
our adoption of the Glover “any amount of jail time” test only applies to cases
involving the federal guidelines. See Daniel v. Cockrell, 283 F.3d 697, 706-07 fns. 16 &
17.
8
brief that he went to trial in part because Harris advised him that he would be acquitted
on one of the counts of the indictment. Whether it is reasonably probable that Grammas’s
decision to plead guilty would have been different had he been properly counseled as to
his potential punishment is a question of fact. Such a determination should be left to the
district court. See 28 U.S.C. § 2255.
Second, even if Grammas had decided to plead guilty, it is unclear whether he
would have received a lesser sentence. Had Grammas pleaded guilty and qualified for a
three-point reduction under Guidelines § 3E1.1(b), he would have had his sentence
reduced by at least 7 and up to 19 months; similarly, had Grammas received a 2-point
reduction under Guidelines § 3E1.1.(a), he would have been eligible for a 13-month shorter
sentence (the court sentenced Grammas at the bottom of the Guidelines range). See U.S.
SENTENCING GUIDELINES MANUAL § 3E1.1 (2001). On the other hand, Grammas’s sentence
would not have decreased if he received the 2-point reduction and were then sentenced
to the maximum sentence in that range (i.e., 71-months). Further, it is possible that, even
had Grammas pleaded guilty, he may not have qualified for the reduction of sentence
under the Guidelines. See id. at n.3 (“A defendant who enters a guilty plea is not entitled
to an adjustment under this section as a matter of right.”). This question, like the last,
5
requires further proceedings in front of the district court to determine its answer.
5
The acceptance of responsibility reduction requires that the defendant not
challenge his conviction. See U.S. SENTENCING GUIDELINES MANUAL § 3E1.1 (“This
adjustment is not intended to apply to a defendant who puts the government to its
burden of proof . . . and only [after conviction] admits guilt and remorse.”). Had
Grammas pleaded guilty, he would not have gone to trial. Should the district court
9
This Court has long recognized that to show prejudice, a defendant “must
demonstrate a reasonable probability that, but for his counsel’s actions, he would have
received a ‘significantly less harsh’ sentence.” United States v. Ridgeway, 321 F.3d 512,
515 (5th Cir. 2003) (E. M. Garza, J.) (discussing potential prejudice resulting from counsel’s
alleged failure to inform the defendant of his sentencing exposure if he proceeded to trial
instead of pleading guilty, but finding no prejudice because the 120-month sentence the
defendant might have received had he pleaded guilty was not “significantly less harsh”
than the 121-month sentence he received after being found guilty at trial). Our holding
today recognizes that the Supreme Court’s decision in Glover v. United States, 531 U.S.
198, 203 (2001) (noting that “any amount of jail time has Sixth Amendment significance”),
abrogates our “significantly less harsh” test and replaces it with the “any amount of jail
time” test. See supra.
IV. CONCLUSION
Grammas demonstrates that Harris provided ineffective assistance of counsel in
violation of the Sixth Amendment. Further proceedings are needed, however, to
determine whether Harris’s ineffectiveness actually prejudiced Grammas. In particular,
the district court should determine whether it was reasonably probable that (1) Harris’s
deficient performance affected Grammas’s decision whether to plead guilty, and (2) if
find that Grammas would have pleaded guilty, Grammas should not then be deprived
the reduction on the sole ground that he actually went to trial. Similarly, because
Grammas proceeded in forma pauperis and had the benefit of counsel at the initial
trial, he should not be denied that assistance at the evidentiary hearing.
10
Grammas had pleaded guilty, whether he would have received a reduction in sentence
under the federal guidelines. Therefore, this case is REMANDED for an evidentiary
hearing and, if necessary, resentencing consistent with this opinion.
11
EMILIO M. GARZA, Circuit Judge, concurring in the judgment:
Because I do not agree with a significant part of the majority’s analysis, see United States v.
Grammas, ___ F.3d ___, 2004 WL 1146382 (5th Cir. May 21, 2004) (Emilio M. Garza, J.,
dissenting), I concur in the judgment only.
12