United States Court of Appeals
For the First Circuit
No. 02-2667
UNITED STATES OF AMERICA,
Appellee,
v.
JAIME O. COLÓN-TORRES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Selya, and Lipez,
Circuit Judges.
Alexander Zeno for appellant.
Rose M. Vega, with whom H.S. García, United States Attorney,
Sonia I. Torres, Assistant United States Attorney and Chief,
Criminal Division, and Thomas F. Klumper, Assistant United States
Attorney, were on brief for appellee.
September 9, 2004
LIPEZ, Circuit Judge. Defendant Jaime O. Colón-Torres
("Colón") pled guilty to one count of an indictment for a drug
offense. On appeal, Colón argues that his plea was not knowing and
voluntary and that his sentence should be vacated because he was
deprived of the effective assistance of counsel as guaranteed by
the Sixth Amendment to the United States Constitution. In pursuing
this Sixth Amendment claim, Colón alleges several deficiencies in
the performance of his attorney, Joaquín Peña Ríos ("Peña"),
including claims that Peña failed to investigate Colón's criminal
history prior to recommending a plea agreement (Colón was sentenced
as a career offender), and that Peña became ensnared in an actual
conflict of interest during Colón's sentencing hearing, effectively
depriving Colón of counsel at a critical stage of the proceedings.
Although we rarely entertain ineffective assistance of
counsel claims on direct appeal, instead relying on collateral
proceedings for such challenges, this case fits within an exception
to the rule. Here, the indicia of ineffectiveness are sufficiently
developed in the record to warrant, in the exercise of our
discretion, direct appellate review. After a careful analysis of
the record and the case law, we remand for an evidentiary hearing
on whether the judgment should be vacated and Colón should be
allowed to withdraw his guilty plea due to the ineffective
assistance of counsel.
-2-
I.
Because the background facts of the underlying criminal
activity are not at issue in this case, we do not repeat the
details here. For our purposes, it suffices to say that defendant
pled guilty to conspiracy to possess with the intent to distribute,
inter alia, five kilograms or more of a substance containing a
detectable amount of cocaine, in violation of 21 U.S.C. §§
841(a)(1) and 846.1 The facts and circumstances surrounding
defendant's relationship with his attorney are both more relevant
and complicated. We turn now to those details.
A. Colón's Pro Se Motion for New Counsel
After Colón was indicted and arrested in November 2001,
the court appointed Peña as defendant's counsel on the day of
defendant's arraignment. Following two status conferences held on
December 19, 2001, and February 1, 2002, Colón filed a pro se
motion requesting the appointment of a new attorney. The district
court received the motion on April 2. In his pro se motion, which
Colón filed in Spanish and which is now reproduced in English for
the appellate record, Colón contended that "the client-attorney
1
21 U.S.C. § 841 (a)(1) provides that "[e]xcept as authorized
by this subchapter, it shall be unlawful for any person knowingly
or intentionally . . . to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute, or dispense, a
controlled substance . . . ." 21 U.S.C. § 846 states that "[a]ny
person who attempts or conspires to commit any offense defined in
this subchapter shall be subject to the same penalties as those
prescribed for the offense, the commission of which was the object
of the attempt or conspiracy."
-3-
relationship has deteriorated due to the attitude by counselor Peña
of insisting in his persuasive way to try to push me into a
decision without having counseled me in a competent and effective
manner so that [the defendant] would make a correct decision before
the Court." Defendant's pro se motion specifically alleged that
his attorney had provided him with no documents related to his
case, including the indictment, discovery materials, or any
statements of governmental witnesses producible under the Jencks
Act, 18 U.S.C. § 3500.2 Additionally, the defendant alleged that
while he was talking to his attorney on March 25, 2002, they "were
approached by another one of [Peña's] clients . . . [who] started
yelling to Peña saying he was an incompetent and anti-ethical
attorney, that he never handed him any document regarding his
criminal case and that he cheated him by stating that he was ready
to see his case." Then, according to defendant's translated pro se
motion, "Peña reacted in an anti-professional and anti-ethical
manner and the argument between him and his [other] client
descended to levels which cannot be quoted at this time." The
2
The Jencks Act provides, inter alia, that "[a]fter a witness
called by the United States has testified on direct examination,
the court shall, on motion of the defendant, order the United
States to produce any statement (as hereinafter defined) of the
witness in the possession of the United States which relates to the
subject matter as to which the witness has testified." 18 U.S.C.
§ 3500(b). The term "statement" includes "a statement, however
taken or recorded, or a transcription thereof, if any, made by said
witness to a grand jury." 18 U.S.C. § 3500(e)(3).
-4-
district court did not respond to defendant's pro se motion for new
counsel.
B. The Plea Agreement
On April 24, 2002, Peña filed a motion for change of plea
on behalf of Colón, and the district court set the change of plea
hearing for May 2. On that date, the defendant pled guilty to
count one of the indictment after signing the plea agreement that
same day. The plea agreement indicated that the penalty for the
offense charged "is a term of imprisonment which shall not be less
than ten (10) years and not more than Life" in addition to certain
fines and a period of supervised release, in accordance with 21
U.S.C. § 841(b)(1)(A) (detailing the minimum and maximum sentences
for, inter alia, crimes involving five or more kilograms of
cocaine). The plea agreement also stated that "the Court shall
impose a sentence in accordance with the applicable provisions of
the Sentencing Guidelines . . . without regard to any statutory
minimum sentence [a reference to the so-called "safety valve"
provision], if the court finds that the defendant meets the
criteria contained in [18 U.S.C.] § 3553(f)(1)-(5) [which are
reflected in] Guidelines § 5C1.2."
The United States Sentencing Guidelines set forth the
criteria referred to in the plea agreement. The first criterion is
that "the defendant does not have more than 1 criminal history
point, as determined under the sentencing guidelines [in U.S.S.G.
-5-
§4A1.1]." U.S.S.G. § 5C1.2(a)(1). Sentencing Guidelines § 4A1.1
sets forth the number of criminal history points assigned to a
defendant based on his prior sentences of imprisonment. In the
plea agreement, the parties assumed a criminal history category of
II, which corresponds to a defendant having two or three criminal
history points as described in U.S.S.G. § 4A1.1. This assumption
– that Colón has two or three criminal history points – would
preclude the application of U.S.S.G. § 5C1.2, which requires, inter
alia, that a defendant have no more than one criminal history
point. Accordingly, under the criminal history category assumption
in the plea agreement, Colón was not eligible for sentencing
without regard to the statutory minimum.
The Sentencing Guidelines calculations in the plea
agreement provide that based on a drug quantity amount of at least
five hundred grams but less than two kilograms of cocaine, Colón's
base offense level ("BOL") was 26 pursuant to the drug quantity
table in U.S.S.G. § 2D1.1(7). The plea agreement also stipulates
that "[s]hould defendant clearly demonstrate acceptance of
responsibility for the offense, defendant's base offense level
shall be reduced by three levels pursuant to U.S.S.G. § 3E1.1(b)."
These agreements resulted in a BOL of 23, and, given the assumption
of a criminal history category of two, a Sentencing Guidelines
range of fifty-one to sixty-three months of imprisonment. The
government and the defendant agreed to a recommended sentence of
-6-
sixty months of imprisonment. Because Colón pled guilty to a drug
quantity of five hundred grams to two kilograms (as opposed to the
more than five kilogram quantity for which he was indicted), his
statutory minimum sentence dropped from ten years to five years.
Compare 21 U.S.C. § 841(b)(1)(A) (providing that in cases involving
five kilograms or more of cocaine, the defendant shall be
imprisoned for not less than ten years and not more than life),
with id. § 841(b)(1)(B) (providing that in cases involving five
hundred grams or more – and, implicitly, less than five kilograms
– of cocaine, the defendant shall be imprisoned for not less than
five years and not more than forty years).
C. Change of Plea Hearing
At the change of plea hearing on May 2, the district
court orally went through the plea agreement with Colón. The court
said that "if we assume a criminal history category of one, then
the guideline range would be 46 to 57 months. But if we assume a
criminal history category of two, which apparently is what you and
your attorney and the attorney for the government think that is the
correct criminal history category, then the guideline range would
be 51 to 63 months. Do you understand that up to now?" Colón
replied that he did. The district court continued: "But since
there is a statutory mandatory minimum of 60 months, then the
guideline range would be 60 to 63 months and then the government
and you would recommend to the court that I sentence you to the
-7-
bottom end of the guideline range which is 60 months."3 Again,
upon questioning, Colón indicated that he understood the court's
explanation that because the statute imposed a minimum sentence of
five years for the drug quantity to which Colón pled guilty, the
Guidelines sentencing range was effectively sixty to sixty-three
months.
Finally, the court stated: "Now, are you aware of the
fact that there is no stipulation as to the criminal history
category but, as I mentioned before, it is assumed that your
criminal history category is two. . . . And if it's higher than
two, then the guideline range would be 60 to 71 months instead of
60 to 63 months." Since the plea agreement did not suggest that a
career offender designation was a possibility, the court did not
refer to the possibility of Colón being sentenced as a career
offender under U.S.S.G. § 4B1.1. Instead, the district court
conveyed the impression that the likely maximum sentence Colón
faced was seventy-one months, corresponding to a criminal history
category of III, which is one category higher than the category
assumed in the plea agreement.4 Peña said nothing to dispel this
3
This statement of a sixty-month mandatory minimum is based on
the drug quantity to which Colón pled guilty – at least five
hundred grams but less than two kilograms of cocaine – and not the
drug quantity for which he was indicted, i.e., in excess of five
kilograms of cocaine.
4
In fact, the Guidelines provide increasing sentences by
criminal history category up to a criminal history category of VI.
-8-
impression. Upon questioning, Colón continued to state that he
understood the court's explanation.
D. The Presentence Report
The presentence report ("PSR"), prepared on September 3,
2002, stated that Colón had three prior convictions under
Commonwealth laws, and that his criminal history points totaled
eight under U.S.S.G. § 4A1.1. Ordinarily, eight criminal history
points would have earned Colón a criminal history category of IV.
However, U.S.S.G. § 4B1.1 provides that a defendant will be treated
as a career offender if he was at least eighteen years old when he
committed the instant crime of violence or a controlled substance
offense and has two prior convictions for either type of offense.
The PSR then correctly identified Colón as a career offender, based
on his prior convictions.5
Colón's career offender status affected the applicable
sentence in two ways under U.S.S.G. § 4B1.1. First, all career
5
As we will describe in greater detail, Colón does not dispute
that he is in fact a career offender under the Guidelines, but he
and Peña disagree about the timing of Peña's awareness of Colón's
prior convictions. Colón's prior convictions and sentences, all of
which took place after his eighteenth birthday, are as follows:
(1) possession of an illegal weapon as violations of Article 168 of
the Puerto Rico Penal Code and Article 8 of the Puerto Rico Weapons
Law, for which he was sentenced to six months of imprisonment on
February 17, 1987; (2) robbery with a weapon in violation of
Articles 5, 6, and 8 of the Puerto Rico Weapons Law, for which he
was sentenced to ten years of imprisonment on November 4, 1987; and
(3) kidnaping, attempted murder, robbery, and illegal appropriation
in violation of the Puerto Rico Weapons Law, for which he was
sentenced to sixteen years of imprisonment on November 28, 1990.
-9-
offenders are assigned to criminal history category VI, the highest
category in the Guidelines. Second, a career offender's BOL is the
greater of either the BOL otherwise calculated under the Guidelines
or the BOL listed in a table in U.S.S.G. § 4B1.1. This table sets
the BOL according to the statutory maximum sentence for the
underlying offense. Because the statutory maximum for the drug
quantity to which Colón pled guilty (five hundred grams to two
kilograms) was forty years under 21 U.S.C. § 841(b)(1)(B), his BOL
as a career offender under U.S.S.G. § 4B1.1 should have been 34,
which corresponds to a statutory maximum sentence of twenty-five
years or more, but less than life imprisonment. The PSR
incorrectly stated that "[b]ased on the statutory maximum term of
imprisonment of 20 years, the base offense level should be
increased to 32" under U.S.S.G. § 4B1.1, which corresponds to a
statutory maximum sentence of between twenty and twenty-five years.
The PSR committed this mistake despite correctly stating later that
"[p]ursuant to the stipulation [in the plea agreement], the
statutory maximum term of imprisonment is forty (40) years and the
minimum is five (5) years per 21 U.S.C. § 841(b)(1)(B)."
The PSR carries the BOL error into its description of the
sentencing options under the Guidelines provisions. There, the PSR
assigns a total offense level ("TOL") of 29, which reflects a
three-level acceptance of responsibility downward adjustment from
the erroneous BOL of 32. A TOL of 29, coupled with a criminal
-10-
history category of VI, results in a Guidelines sentencing range of
151 to 188 months, which is the recommendation of the PSR. In
fact, the TOL should have been 31, which would reflect a three-
level acceptance of responsibility downward adjustment from the
correct BOL of 34. A TOL of 31, coupled with a criminal history
category of VI, would have resulted in a Guidelines sentencing
range of 188 to 235 months. In short, the PSR was internally
inconsistent on the statutory maximum sentence and incorrectly
calculated the sentence that ought to be imposed on Colón under the
Guidelines.
Additionally, it appears that the United States probation
officer who prepared the PSR encountered some difficulty in
reaching Peña to inform him that the PSR was available. The
probation officer certified an addendum to the document noting
these difficulties:
Counsel for the Government was duly notified
on September 24, 2002, and several attempts
were made to notify Counsel for the defendant,
pursuant to 18 U.S.C. § 3552(d) that the
presentence investigation report was ready for
their inspection. However, as they have not
been able to review the report, objections, if
any, have not been submitted.
According to the district court docket, the presentence report was
transmitted to Peña on October 2, five days before the sentencing
scheduled on October 7.6
6
The sentencing hearing was rescheduled more than once,
eventually taking place on November 14.
-11-
E. The Amended Plea Agreement
In light of the information in the PSR about Colón's
career offender status, Peña renegotiated the terms of Colón's plea
with the government. The negotiations produced an amended plea
agreement, which stipulated a drug quantity amount of four hundred
to five hundred grams of cocaine, a smaller figure than the amount
indicated in the original plea agreement (at least five hundred
grams but less than two kilograms). As set forth in the amended
plea agreement, this drug quantity resulted in a BOL of 24 under
U.S.S.G. § 2D1.1(8). The parties further agreed that Colón would
receive the three-level downward adjustment for acceptance of
responsibility for a TOL of 21.
Next, the amended plea agreement erroneously stated that
"[a]ssuming a Criminal History of VII, the sentence would be
between fifty-seven (57) to seventy-one (71) months." The criminal
history categories in the Guidelines do not exceed VI, and the
sentencing range of fifty-seven to seventy-one months actually
corresponds to a criminal history category of IV, which, leaving
aside Colón's career offender status, would have been Colón's
correct criminal history category.
However, the amended plea agreement went on to explain
that "the parties are aware based on the Pre-Sentence Report that
the defendant is a Career Offender . . . ." The amended plea
agreement states that Colón's career offender status would result
-12-
in a BOL of 29, a criminal history category of VI, and a Guidelines
sentencing range of 151 to 188 months. While this criminal history
category and Guidelines sentencing range are ultimately correct,
Colón's total offense level, and not his base offense level, would
be 29 once the three-level adjustment for acceptance of
responsibility was incorporated.7 The government then agreed to
recommend a sentence at the lowest end of the Guidelines range.
F. The Sentencing Hearing
On the morning of November 14, 2002, the district court
called Colón's sentencing hearing and received the amended plea
agreement, which Colón again had signed the day of the hearing. At
the sentencing hearing, the district court asked Colón a series of
questions about the PSR. Colón responded that his attorney had
informed him of the PSR "[a] little bit" and that Peña "just told
me that the [PSR] was recommending that my sentence be increased
because I'm a career criminal." After several exchanges, the court
asked whether Colón needed more time to go over the PSR with Peña,
and Colón said that he did not. The court also asked whether Colón
7
Colón's BOL would have been 32 because under U.S.S.G. § 4B1.1
this is the BOL corresponding to a statutory maximum sentence of
twenty years, the maximum provided by the relevant statute. See 21
U.S.C. § 841(b)(1)(C) (providing a maximum sentence of twenty years
for violations involving less than five hundred grams of cocaine).
The BOL of 32 presumably would be reduced to a TOL of 29 because of
the three-level downward adjustment for acceptance of
responsibility.
-13-
wished the court to correct any information in that report. The
following exchange occurred:
Colón: Well, what I don't understand is that
when I plead guilty here the first time and
that was because of advise [sic] that I had
received that I should plead guilty to a
lesser offense [and] what surprises me that
now my criminal record is being used –
The court: Why does that surprise you? You
know the criminal record you had before you
plead guilty, did you not?
Colón: Well, it surprises me because my
attorney came to talk to me about what was to
my best advantage.
The court: Of course, did you tell your
attorney that you had three prior convictions?
Colón: I gave him documents that so stated.
At that point, the court inquired of Peña whether he had seen those
documents. Peña replied: "No, Your Honor. . . . The only
information he gave me regarding the prior convictions of him was
a charge for robbery and that was all the information I had from
him regarding his prior convictions. So that's not true at all."
Hearing this account from Peña, the court recalled that
five days earlier, on November 9, when Colón's sentencing had been
scheduled and then postponed, Peña and the Assistant U.S. Attorney
(AUSA) approached the bench and "at that time [Peña] informed the
court that you were surprised because the criminal history category
[as set forth in the PSR] had come out much higher than what you
-14-
were aware of." When Peña confirmed that the court's recollection
was correct, the court said:
So, taking that into consideration it would
seem to me that you were never informed by
your client of the extent of his criminal
record, otherwise you would have been aware
that his criminal history category would be
higher and, therefore, that would have been
considered by you in talking to the government
for a possible plea.
Peña confirmed the accuracy of the court's statement. The court
then went on to conclude:
So, I believe that counsel's statement to the
court is the truth in view of counsel's
reaction when he came here for your sentence
originally November 9th and he was surprised
that your criminal history category was higher
because of the prior convictions that you had
which he had not learned about from you. So,
it would seem to me that the statements you
are making to the court are not accurate.
Colón replied that "[t]he only thing I want to tell you,
Your Honor, is that I have nothing against counsel." After the
court said "[o]h, I know that," Colón continued:
So you can see that I am not lying to you, he
has the document there and if he could please
show it to you. It's a document that states
the cases that I had before and that I had
given that document to him way at the
beginning. That is simply so you could see
that I wasn't lying, that I am being honest.
When the court again turned to Peña for a response, counsel
admitted that "we do have the document that was handed by him but
this document was not handed previously to the change of plea
-15-
hearing. This was handed afterwards. We were not at the moment of
the change of plea aware of the fact that he had those previous
convictions, Your Honor." The court then observed that "[i]n any
event, once you learned of that fact, I believe you went back to
the [AUSA] and tried to renegotiate the plea?" Peña confirmed that
he had in fact done so.
The court then confirmed that Colón had signed the
amended plea agreement and began discussing the agreement's terms,
noting that the reduction in drug quantity reduced Colón's TOL and
thus his Guidelines sentencing range from 188-235 months down to
151-188 months. After confirming that Colón was aware of both that
reduction and that the government recommended a 151-month sentence,
the court asked Peña if there was anything he would like to state
for the record on behalf of Colón. Peña offered that "the sentence
that defendant is facing right now due to his category as a career
offender . . . is much harsher than it should be if we do consider
the instant offense by itself . . . ." Peña then acknowledged that
the court had limited discretion to depart from the Sentencing
Guidelines and reiterated that the proposed sentence is a "very
harsh sentence for our client . . . ." Counsel went on to say that
[o]ther than that, Your Honor, this is the
first time that we ever face a situation like
this. The representation that defendant had
done to the court is in terms of that. We did
not discharge our responsibility adequately
although our position, Your Honor, is that we
were from the very beginning trying to help
-16-
our client, defendant, in terms of the
negotiations with the government.
Following brief statements by Colón and the AUSA, the court
sentenced Colón to 151 months of imprisonment, a six-year term of
supervised release with certain conditions, and a special monetary
assessment of $100.
II.
On appeal, Colón now argues that he was denied effective
assistance of counsel as guaranteed by the Sixth Amendment. Before
we reach the merits of Colón's argument, we must first address the
propriety of considering it on direct appellate review.
A. Availability of Appellate Review
When we receive ineffective assistance of counsel claims
on direct appeal, we have three options. First, and most
typically, we respond that such claims "must originally be
presented to the district court" as a collateral attack under 28
U.S.C. § 2255.8 United States v. Ovalle-Marquez, 36 F.3d 212, 221
8
28 U.S.C. § 2255 provides that prisoners may seek relief
through a writ of habeas corpus:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess
of the maximum authorized by law, or is otherwise subject
to collateral attack, may move the court which imposed
the sentence to vacate, set aside or correct the
sentence.
-17-
(1st Cir. 1994) (quoting United States v. Hunnewell, 891 F.2d 955,
956 (1st Cir. 1989)); see also United States v. Gonzalez-Vazquez,
219 F.3d 37, 41-42 (1st Cir. 2000) (collecting cases). Often the
record is not sufficiently developed to allow adequate
consideration of the issue on appeal, and district courts are in a
better position to adduce the relevant evidence. See United States
v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991) ("A principal purpose
for the rule is the need to marshal and evaluate evidentiary facts
required to place the adequacy of a defendant's representation into
proper perspective.").
A second option is available "where the critical facts
are not genuinely in dispute and the record is sufficiently
developed to allow reasoned consideration of an ineffective
assistance claim." Id. In those comparatively rare situations,
"an appellate court may dispense with the usual praxis and
determine the merits of such a contention on direct appeal." Id.;
see also United States v. Downs-Moses, 329 F.3d 253, 264-265 (1st
Cir. 2003).
This case falls into the gray area between these two
categories. In ways that we will explain, the record here is not
developed enough to decide the ineffective assistance of counsel
claim on the merits, yet it does contain sufficient indicia of
ineffectiveness in the plea agreements, the PSR, and the
transcripts of the change of plea and sentencing hearings to
-18-
warrant remanding for an evidentiary hearing on the issue without
requiring defendant to bring a collateral attack instead. See
Unites States v. Theodore, 354 F.3d 1, 3 (1st Cir. 2003) (finding
"indicia of ineffectiveness" and remanding to the district court so
that it could "determine in the first instance whether defense
counsel's total performance was such that a new trial is
warranted"); see also United States v. Leone, 215 F.3d 253, 256 (2d
Cir. 2000) (observing that "when faced with such a claim for
ineffective assistance on direct appeal, we may do one of three
things: (1) decline to hear the claim, permitting the appellant to
raise the issue as part of a subsequent § 2255 petition; (2) remand
the claim to the district court for necessary fact-finding; or (3)
decide the claim on the record before us"); accord Wayne R. LaFave
et al., Criminal Procedure § 11.7(e) (2d ed. 1999).
B. Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution
guarantees that "[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his
defence." It is well settled that this right to effective
assistance of counsel attaches at all critical stages of the trial,
United States v. Wade, 388 U.S. 218 (1967), including at
sentencing. Gardner v. Florida, 430 U.S. 349, 358 (1977) (holding
that "sentencing is a critical stage of the criminal proceeding at
-19-
which [defendant] is entitled to the effective assistance of
counsel").
The touchstone for any ineffective assistance of counsel
claim is the two-part test laid down by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984).
First, 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.
Id. at 687. In other words, defendant "must show that counsel's
performance was so deficient that it prejudiced his defense."
United States v. Ademaj, 170 F.3d 58, 64 (1st Cir. 1999)
(summarizing Strickland). As the Strickland Court explained,
"[u]nless a defendant makes both showings, it cannot be said that
the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable." Strickland,
466 U.S. at 687.
In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme
Court applied Strickland's two-part test to ineffective assistance
of counsel claims in the guilty plea context. Id. at 58 ("We hold,
therefore, that the two-part Strickland v. Washington test applies
to challenges to guilty pleas based on ineffective assistance of
-20-
counsel."). As the Hill Court explained, "[i]n the context of
guilty pleas, the first half of the Strickland v. Washington test
is nothing more than a restatement of the standard of attorney
competence already set forth in [other cases]. The second, or
'prejudice,' requirement, on the other hand, focuses on whether
counsel's constitutionally ineffective performance affected the
outcome of the plea process." Id. at 58-59. Accordingly, Colón
will have to show on remand "a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial." Id. at 59.
1. Alleged Deficiencies in Peña's Performance
This record raises troubling questions about Peña's
performance.
a. Colón's criminal history
It is undisputed that Peña did not independently
investigate his client's criminal history before recommending that
Colón enter into the plea agreement. Instead, according to Peña,
he relied on Colón's representation that he had been convicted only
once, for robbery, prior to this case. There is no per se rule
that an attorney's failure to investigate independently his
client's criminal history before advising him to accept a plea
offer is ineffective assistance. Clients should answer truthfully
their attorney's inquiries about their past convictions, and
lawyers are entitled to rely reasonably on the explicit
-21-
representations of clients about their criminal histories. See
Strickland, 466 U.S. at 691 (explaining that counsel need not
undertake investigations if they reach "a reasonable decision that
makes particular investigations unnecessary"). We agree with one
of our sister circuits that "a determination of whether reliance on
a client's statement of his own criminal history constitutes
deficient performance depends on the peculiar facts and
circumstances of each case." United States v. Pease, 240 F.3d 938,
941-42 (11th Cir. 2001). See also Strickland, 466 U.S. at 691 ("In
any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel's
judgments."); United States v. Russell, 221 F.3d 615, 621 (4th Cir.
2000) ("When representing a criminal client, the obligation to
conduct an adequate investigation will often include verifying the
status of the client's criminal record, and the failure to do so
may support a finding of ineffective assistance of counsel.")9
9
A client's criminal history almost always has significant
bearing on the sentence a defendant will face under the Guidelines.
Here, the recommended sentence agreed to by the parties in the
original plea agreement (sixty months) was never a possibility in
light of Colón's actual criminal history. Moreover, in the absence
of any indication that Colón would have to be sentenced as a career
offender, the sentence described by the judge at the change of plea
hearing (a maximum of seventy-one months, based on a criminal
history category only one step higher than that assumed in the plea
agreement) was far below the sentence Colón actually faced.
Colón's career offender status exposed him to an additional
imprisonment term of between ten and fourteen years under the drug
quantity calculation and other stipulations of the original plea
-22-
In this case, as in many cases involving claims of
ineffective assistance of counsel, a factual dispute must be
resolved before a court makes any judgment about the effectiveness
of Peña's performance in dealing with Colón's criminal history.
According to Colón, as recounted to the district court, he gave
Peña a document that detailed Colón's full criminal history "way at
the beginning" of their relationship. As we have noted, Peña
disagreed with the account Colón gave the district court. He first
told the court that "[t]he only information [Colón] gave me
regarding the prior convictions of him was a charge for robbery and
that was all the information I had from him regarding his prior
convictions." Then, once Colón pointed out that Peña had the
document detailing his criminal history with him in court, Peña
admitted that "we do have the document that was handed by him but
this document was not handed previously to the change of plea
hearing. This was handed afterwards."
It is somewhat curious that Peña says that he received
the document after the change of plea hearing, which was held May
2. The district court commented that Peña was surprised about
Colón’s career offender status, as revealed in the PSR, at the
November 9 hearing. Presumably, if Peña had received the document
before receipt of the PSR (transmitted to Peña on October 2,
according to the district court docket), he would not have been
agreement.
-23-
surprised at the November 9 hearing and would not have waited to
renegotiate the plea agreement until after receipt of the PSR. On
the other hand, if Peña had received the document from Colón after
he received the PSR, it seems likely that he would have said that
Colón gave him the criminal history document after Peña received
the PSR, not after the change of plea hearing.
On remand, the district court will have to engage in fact
finding on what information Colón gave Peña about his criminal
history and when he gave it to him. If Colón misinformed Peña
about Colón's prior convictions when Peña recommended that Colón
enter into the original plea agreement, that fact would have to be
weighed carefully in deciding whether Peña still should have
conducted some independent investigation of Colón's criminal
history.10 On the other hand, if Colón provided Peña with a
document accurately detailing his past convictions prior to the
recommendation of Peña that he accept a plea agreement that would
not withstand scrutiny because of those past convictions, Peña's
recommendation would seem to be clear evidence of ineffectiveness
of counsel.
10
Colón's appellate attorney plausibly represents that
"obtaining a criminal record under local laws [is] a routine
matter" and can be accomplished easily, presumably in part because
all of Colón's prior convictions are for violations of Commonwealth
laws.
-24-
b. Explaining the PSR or Plea Agreements
Colón also alleges that Peña did not adequately explain
the PSR or the plea agreements. Colón signed both the plea
agreement and the amended plea agreement on the day that they were
each presented in court. In the peculiar circumstances of this
case, these last-minute signings suggest that Colón might have
lacked sufficient time to consider the pleas, their ramifications,
and any relevant advice Peña offered. Additionally, the appellate
record suggests that when Peña received the PSR, he did not discuss
the PSR with Colón prior to renegotiating a plea on his behalf with
the government. In fact, the material before us suggests that
Colón may have seen the PSR and the amended plea agreement for the
first time the morning of his sentencing hearing. Moreoever, if
Peña ever discussed with Colón the possibility of withdrawing the
plea in light of the career offender disclosure of the PSR, there
is no hint of such discussion in the record.
These suggestions of haste and limited communication with
Colón add significance to Peña's failures to correct errors in the
PSR (misstating the BOL, statutory maximum sentence, and Guidelines
sentencing calculation) and in the amended plea agreement
(misstating the criminal history category and substituting a "base
offense level" for a "total offense level"). Unnoticed or
unaddressed by Peña, these errors reflect the kind of
inattentiveness to detail by Peña described by Colón in his pro se
-25-
motion for change of counsel. The last-minute signings of the plea
agreements, coupled with the uncorrected errors in the documents,
may be further indicia of ineffective assistance of counsel.
c. Peña's Admission of Inadequacy at Sentencing
At the sentencing, Peña said that "[w]e did not discharge
our responsibility adequately although our position, Your Honor, is
that we were from the very beginning trying to help our client,
defendant, in terms of the negotiations with the government." This
revealing comment was made after Colón insisted that Peña show the
document detailing Colón's criminal history to the court. Although
Peña may not have intended this statement as an admission of
ineffective assistance of counsel, it is an unusual concession for
counsel to make, and it is one more indication of possible
ineffectiveness that justifies the remand for an evidentiary
hearing.
d. Conflict of Interest
Few commitments from an attorney to a client are more
important than "a duty of loyalty, a duty to avoid conflicts of
interest." Strickland, 466 U.S. at 688. On remand, the court must
explore whether Peña's interests became adverse to Colón's during
the sentencing hearing. There are worrisome indications of such a
conflict.
We have held that "in order to show an actual conflict of
interest, a defendant must show that (1) the lawyer could have
-26-
pursued a plausible alternative defense strategy or tactic and (2)
the alternative strategy or tactic was inherently in conflict with
or not undertaken due to the attorney's other interests or
loyalties." United States v. Soldevila-Lopez, 17 F.3d 480, 486
(1st Cir. 1994). Here, the relevant defense strategy was a
possible motion for the withdrawal of Colón's plea. Peña might
well have argued at the sentencing hearing that Colón should be
allowed to withdraw his guilty plea because Colón was unaware of
the consequences of his plea, given the impact of his criminal
history category under the Sentencing Guidelines and the
impossibility of the sixty month sentence agreed to by the parties.
See Fed. R. Crim. P. 11(d)(2) (allowing plea withdrawals prior to
sentencing when "the defendant can show a fair and just reason for
requesting the withdrawal").11 There is no indication in the record
that Peña advised Colón at any time after receipt of the PSR of the
possibility that he might file with the court a motion to withdraw
his plea.
A conflict of interest might explain this silence. Such
a withdrawal motion would likely implicate Peña's lack of awareness
of Colón's criminal history, or his failure to appreciate its
11
When Colón pled guilty in November 2002, the relevant
standard was then reflected in Fed. R. Crim. P. 32(d), which
allowed withdrawal prior to sentencing for "any fair and just
reason." This provision of Rule 32 was incorporated into current
Rule 11 as part of the 2002 amendments designed to generally
restyle and reorganize the Criminal Rules.
-27-
significance, in recommending the original plea agreement.12
Moreover, unaware of the possibility of a career offender sentence
for Colón, the court itself arguably might have misled Colón at the
change of plea hearing when it suggested to him that if his
criminal history category was higher than a II, the Guidelines
range he faced was only sixty to seventy-one months (corresponding
to a criminal history category of III, when the statutory minimum
of sixty months is taken into account). Together, Peña's pre-plea
performance and the district court's explanation of the sentence
might have provided "a fair and just reason" for withdrawal of the
guilty plea. But Peña, perhaps absorbed in defending his own
performance before the judge and inattentive to important details
of the plea proceedings, apparently overlooked or chose to ignore
the option of a motion to withdraw Colón's plea.
This would not be a small oversight. During the
sentencing hearing, it would appear to Colón that he had only two
options. He could disavow the amended plea agreement and be
sentenced as a career offender under the original plea agreement's
12
As we have described, Colón claimed that he had provided Peña
with documents detailing his conviction history at an early stage
in the proceedings and that Peña failed to properly advise Colón of
the effect his career offender status would have on sentencing if
Colón pled guilty. At the sentencing hearing, the district court
asked Peña whether Colón was being truthful in his representations
to the court. At that point, Peña and Colón were pitted against
each other in a credibility contest, with the court ultimately
deciding that Peña was truthful and Colón (potentially
unrepresented in that contest) was not.
-28-
higher drug quantity calculation. Under that scenario, Colón would
be exposed to a Sentencing Guidelines range of 188 to 235 months.
Alternatively, he could continue under the terms of the amended
plea agreement and be sentenced as a career offender under the
amended plea agreement's reduced drug quantity calculation. Under
that scenario, Colón would be exposed to a Sentencing Guidelines
range of 151 to 188 months. Not surprisingly, he chose the latter
course. If he was unaware that there was a third option – the
possibility of withdrawing his plea entirely – his choice to go
forward with the amended plea agreement was not an informed one.
We recognize that the silence of this record on Colón's
awareness of the plea withdrawal possibility at this critical
juncture of the proceedings may reflect only the inadequacy of the
record. Perhaps Peña discussed that possibility with Colón and he
rejected it.13 An evidentiary hearing on remand can explore that
question.
13
In his briefs to this court, Colón claims that he was not
aware that he could have moved to withdraw his guilty plea. In
response to the government's point that Colón did not seek to
withdraw his guilty plea below, Colón's reply brief states that
"[o]ur position throughout our argument is that Appellant's [trial]
counsel was ineffective, and, at sentencing, it did not exist at
all. So, how could, and why, would the Appellant request something
he did not know he had the right to." Colón's appellate briefs go
on to claim that "[h]e was never offered a fair chance to withdraw
his plea, nor did he know that he could have requested so since he
attended a crucial part of the trial without legal representation
as mandated by the Sixth Amendment to the Constitution."
-29-
Also, we are not suggesting that Peña should not have
been allowed to defend himself at the sentencing hearing against a
charge by his client that he claimed was inaccurate. We only
observe that the court's inquiry into Peña's and his client's
conflicting versions of Peña's performance arguably put their
interests at odds, at least at that juncture, leaving Peña to
defend himself against his client's accusations and possibly
leaving Colón without conflict-free representation at a crucial
point in the sentencing hearing.
Other courts have faced the implications of this kind of
credibility contest between counsel and client at a critical stage
of the criminal proceedings. In Lopez v. Scully, 58 F.3d 38 (2d
Cir. 1995), the Second Circuit addressed petitioner's contention
"that he was denied effective assistance of counsel since his
attorney labored under an actual conflict of interest during the
sentencing proceeding" because of the charges of incompetence
petitioner brought forth against his attorney during the sentencing
hearing. Id. at 41. Specifically, the petitioner filed a pro se
motion to withdraw his guilty plea at the beginning of the
sentencing hearing, claiming that his attorney had coerced him into
pleading guilty. The Lopez court observed that "to argue in favor
of his client's [position] would require admitting to serious
ethical violations and possibly subject him to liability for
malpractice; on the other hand, any contention by counsel that
-30-
defendant's allegations were not true would contradict his client."
Id. at 41 (finding a conflict of interest between an attorney and
his client when the client alleged that the attorney coerced him
into pleading guilty) (citation and internal quotation marks
omitted). Here, as in Lopez, "the attorney [arguably] put his own
interests ahead of his client's by denying the truth of [his
client's] allegations and thereby attacking his own client's
credibility." Id.
Similarly, when defense counsel denied his client's
accusations of wrongdoing at a plea-withdrawal hearing, the Seventh
Circuit held that "[a]ny contention by counsel that defendant's
allegations were not true would (and did) contradict his client.
In testifying against his client, counsel acted as both counselor
and witness for the prosecution. These roles are inherently
inconsistent." United States v. Ellison, 798 F.2d 1102, 1107 (7th
Cir. 1986). In combination with the other factors cited, there are
sufficient indicia of such a conflict of interest here to justify
remanding this case for a full evidentiary hearing on Colón's
ineffective assistance of counsel claim.
2. Prejudice
As we observed earlier, Strickland requires both
deficient attorney performance and resulting prejudice. 466 U.S.
at 687. Here, the potential prejudice to Colón is easy to
identify: the lost opportunity to attempt to withdraw the guilty
-31-
plea – or perhaps reject the original plea agreement – and exercise
his constitutional right to a trial. Colón is now adamant that he
wants to have that trial option. In his briefs to this court,
Colón clearly expresses his desire to withdraw his plea and go to
trial, claiming that he "was never given the option to choose
between a long sentence or going to trial, and, if he had been
offered it, he would have rejected it due to the little evidence
against him. . . . He was never given such option nor did he know
he had it. He knows now and he does request so now." Of course,
these claims will be tested on remand in accordance with Hill's
requirement that defendant show "a reasonable probability that, but
for counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial." Hill, 474 U.S. at 59.
In an attempt to blunt this prejudice argument, the
government asserts that the trial court "cured" any problems with
Peña's performance with its careful explanation of the consequences
of Colón's plea at the change of plea and sentencing hearings. We
have already noted one problem with the court's explanation of the
plea consequences at the change of plea hearing because of its
unawareness that Colón might be sentenced as a career offender.
But the more basic issue is that the court's questions and
explanations to Colón at the sentencing hearing (which were
generally on the mark) never addressed the withdrawal of plea
issue. We do not fault the court for this omission. Indeed, the
-32-
court established at the sentencing hearing that Peña renegotiated
the plea agreement with the government when he read in the PSR that
his client was a career offender. In light of this description by
Peña of his renegotiation effort, the court might well have
inferred that Peña was carrying out his client's wishes. It would
certainly be unusual for counsel to conduct such renegotiations
without first discussing with the client the range of options
available, including the possibility of filing a motion to withdraw
the plea. Yet the record raises the real possibility that such a
discussion never took place. On the option of possibly moving to
withdraw the plea, the trial court's questions and explanations
about the consequences of a plea agreement are not a substitute for
adequate legal advice by a competent attorney. The colloquies with
the court did not cure the possible prejudice identified here.
III.
The factors we have identified – Peña's handling of
Colón's criminal history, his failure to correct errors in the PSR
and the amended plea agreement, the plausible suggestion that he
did not adequately explain the PSR or the plea agreements to Colón,
the comment that "[w]e did not discharge our responsibility
adequately," and the potential conflict of interest – provide
serious indicia of ineffective performance that may have induced
Colón to enter an improvident plea and then deprived him of the
-33-
opportunity to attempt to withdraw that plea and exercise his right
to go to trial. Under these circumstances, we choose, in the
exercise of our discretion, to remand this case to the district
court for a full hearing on Colón's Sixth Amendment claim. If
Colón establishes that claim, his sentence should be vacated and he
should be afforded an opportunity to withdraw his guilty plea.14
That said, nothing contained herein should be construed as
expressing any opinion on the appropriate outcome of this case on
remand.
So ordered.
14
We suggest that the district court allow Colón’s appellate
attorney to continue to represent him on remand, given his
familiarity with the case and his success on appeal.
-34-