United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 14, 2000 Decided June 23, 2000
No. 99-3088
United States of America,
Appellee
v.
Michael McCoy,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 98cr00423-02)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs were A. J.
Kramer, Federal Public Defender, and Evelina J. Norwinski,
Assistant Federal Public Defender.
Rachel A. Pierson, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher, Gregg A. Maisel and
Mary-Patrice Brown, Assistant U.S. Attorneys,
Before: Ginsburg, Henderson and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Concurring opinion filed by Circuit Judge Henderson.
Ginsburg, Circuit Judge: Michael McCoy pleaded guilty to
conspiring to distribute and to possess with intent to distrib-
ute cocaine base. Prior to sentencing, however, McCoy
moved to withdraw his plea. The district court denied the
motion and sentenced McCoy to 262 months in prison, to be
followed by five years of supervised release. Upon appeal
McCoy contends that the district court abused its discretion
by denying his request to withdraw his plea.
We find McCoy's plea was not voluntary, and he has
presented legally cognizable defenses to the charges against
him. In addition, the Government has conceded that its
ability to prosecute him has not been prejudiced. We hold
that in these circumstances the district court abused its
discretion by denying McCoy's motion to withdraw his plea of
guilty.
I. Background
The grand jury indicted McCoy on one count of conspiracy
to distribute and to possess with intent to distribute 50 grams
or more of cocaine base, in violation of 21 U.S.C. s 846, and
on one count of distribution of five grams or more of cocaine
base, in violation of 21 U.S.C. ss 841 (a)(1) & (b)(1)(B)(iii).
McCoy and his co-defendant, Bernard Sanders Jr., soon
began to negotiate a plea agreement with the Government,
which made the following proposal: McCoy would (1) plead
guilty to the conspiracy charge; (2) be held accountable for
between 150 and 500 grams of cocaine base; and (3) be
sentenced in accordance with the United States Sentencing
Guidelines. The Government also informed McCoy that if he
chose to proceed to trial, then the Government intended to
file an information pursuant to 21 U.S.C. s 851 regarding his
previous two felony drug convictions and that, should he be
convicted after trial, he would be sentenced as a career
offender to a mandatory term of life imprisonment. After
further negotiations with the Government yielded no better
terms, McCoy signed an agreement substantially identical to
the Government's original proposal.
Before McCoy agreed to plead guilty, his counsel had
determined that he would face from 188 to 235 months in
prison if he accepted the Government's offer. Counsel had
arrived at that conclusion by consulting the drug quantity
table in U.S.S.G. s 2D1.1(c)(3) and determining that McCoy's
base offense level would be 34; after a three point reduction
to reflect McCoy's acceptance of responsibility, see U.S.S.G.
s 3E1.1(a) & (b), his total offense level would be 31. Al-
though the matter is not entirely clear from the record,
counsel apparently had understood that under s 4B1.1 of the
Guidelines McCoy would be treated as a "career offender"
and therefore assigned a criminal history category of VI. See
U.S.S.G. s 4B1.1. Quite clearly, however, counsel did not
realize that s 4B1.1 also enhances the base offense level of a
career offender; because McCoy would be pleading guilty to
a crime for which the maximum penalty is life imprisonment,
see 21 U.S.C. ss 841(b)(1)(A)(iii) & 846, his base offense level
would be 37 rather than 34. See U.S.S.G. s 4B1.1. McCoy's
sentence would therefore be in the range of 262 to 327
months of imprisonment, not the 188 to 235 months predicted
by McCoy's counsel. See U.S.S.G. Ch. 5, Pt. A (table). The
miscalculation committed by McCoy's counsel had been rein-
forced when the prosecutor, in response to an inquiry from
counsel for McCoy, likewise had estimated the applicable
sentencing range at 188 to 235 months.
At a hearing held for the purpose of accepting McCoy's
plea, the court informed McCoy of the minimum statutory
penalty he faced but not of the maximum statutory penalty,
nor of the applicable sentencing range under the Guidelines.
At the same proceeding the Government claimed that if
McCoy went to trial, it could prove the following facts:
On July 9, 1998 Sanders arranged to sell 62 grams of
cocaine base to an undercover agent of the Drug En-
forcement Agency. That same evening McCoy met the
undercover agent, told him he did not have the full 62
grams, and sold him 44.5 grams of cocaine base. McCoy
also gave the agent a pager number to be used to
arrange future transactions. Several months later a
confidential informant for the DEA contacted Sanders to
purchase 125 grams of cocaine base. Sanders agreed to
meet the informant at a shopping mall in Maryland on
October 6, 1998; he arrived at the appointed time in a
car driven by McCoy. Upon meeting the informant,
however, Sanders was uneasy and he canceled the sale
and left with McCoy. The police followed Sanders and
McCoy for a few miles and then arrested them. Prior to
being stopped, Sanders threw from the car a bag contain-
ing 119.6 grams of cocaine base.
McCoy admitted the Government's account was true and
accurate and he accepted responsibility for between 150 and
500 grams of cocaine base. The court then accepted his plea.
It was not until after the plea hearing, when McCoy
received the presentence report, that he discovered he was
facing a higher sentencing range than his attorney and the
prosecutor had previously indicated. After realizing his mis-
take but still prior to sentencing, McCoy filed a motion to
withdraw his plea of guilty. He argued that an "important
element of [his] willingness to plead guilty was based on [his]
counsel's, along with the attorney for the government's, calcu-
lation of [his] total sentence." Although he remained willing
to plead to a charge with a possible sentence of from 188 to
235 months in prison, he stated that "in deliberating over the
issue of whether to forego a trial or enter into a plea
agreement, he did not contemplate the fact that he would be
submitting himself to a sentence with a minimum imposition
of 22 years and a maximum sentence of 27-1/2 years."
Because he had misunderstood the applicable sentencing
range when he entered his plea, McCoy argued, his plea had
been involuntary and hence unconstitutional. The Govern-
ment opposed the motion upon the grounds that McCoy's plea
had not been involuntary and that he had not presented a
legally cognizable defense to the charges against him. The
Government conceded, however, that the passage of time
since McCoy pleaded guilty had not "in any way prejudiced
its case."
In response, McCoy asserted his innocence and argued that
he had done so throughout the negotiations over the plea
agreement. McCoy specifically noted that he had filed a
motion challenging the undercover agent's identification of
him as the seller in the transaction that took place on July 9,
based in part upon evidence that other officers at the scene
had indicated in their surveillance notes that the seller was a
"white male," whereas McCoy is a black male. (At the
sentencing hearing the prosecutor conceded that McCoy had
consistently claimed he was unaware, when he drove Sanders
to the shopping mall, that Sanders intended to sell drugs;
according to McCoy, it was not until they left the mall that he
"was aware that a transaction either had been planned or that
that was the purpose of Mr. Sanders' trip there.")
The district court denied McCoy's motion to withdraw his
plea. The court discounted McCoy's claim of innocence be-
cause, when the court had accepted his plea, McCoy had
admitted that the Government's allegations were true and
gave as one of his reasons for pleading guilty that he had
committed the crime charged. After acknowledging the Gov-
ernment's concession that it would not be prejudiced by
proceeding to trial, the court also rejected McCoy's argument
that he would not have pleaded guilty if he had known the
actual sentencing range to which he was exposed. The court
discounted McCoy's claimed reliance upon the range his
attorney had told him would apply if he pleaded guilty
because McCoy's plea agreement explicitly stated that he had
not been promised a specific sentence and McCoy stated
when pleading guilty that he had not been made any promise
outside of the plea agreement. Additionally, the court noted
that in his motion to withdraw McCoy had characterized his
counsel's representations about his sentencing range as "ap-
proximate." Therefore, the court concluded that McCoy's
plea had not been contingent upon a specific sentencing
range, denied his motion to withdraw the plea, and sentenced
him to 262 months of imprisonment, to be followed by five
years of supervised release.
II. Analysis
McCoy argues upon appeal that the district court abused
its discretion by denying his motion to withdraw his plea:
"Withdrawal of a guilty plea prior to sentencing is to be
liberally granted, and permitted for 'any fair and just rea-
son.' " United States v. Taylor, 139 F.3d 924, 929 (D.C. Cir.
1998) (quoting Fed.R.Crim.P. 32(e)). In reviewing the dis-
trict court's denial of a motion to withdraw we focus upon
three factors: "(1) whether the defendant has asserted a
viable claim of innocence; (2) whether the delay between the
guilty plea and the motion to withdraw has substantially
prejudiced the government's ability to prosecute the case;
and (3) whether the guilty plea was somehow tainted." Id.
Because the Government concedes the second factor, we
confine our analysis to the remaining two.
A. Legally Cognizable Defense
A defendant seeking to withdraw his plea of guilty "gener-
ally must make out a legally cognizable defense to the charge
against him." United States v. Cray, 47 F.3d 1203, 1207
(D.C. Cir. 1995). The defendant's "general denial" is not
enough; he must "affirmatively advance an objectively rea-
sonable argument that he is innocent, for he has waived his
right to try his luck before a jury." Id.
McCoy has adequately presented cognizable defenses to
the charges against him. As recounted above, the grand jury
indicted McCoy on two counts: (1) conspiracy to distribute
and to possess with intent to distribute 50 grams or more of
cocaine base; and (2) distribution of 5 grams or more of
cocaine base. The latter charge is based upon the alleged
sale of 44.5 grams of cocaine base on July 9, 1998; the
conspiracy charge is premised upon both the July sale and
the failed sale of 119.6 grams of cocaine base in October 1998.
As for the July sale, McCoy has consistently argued that
the police mistakenly identified him as the seller. This
defense, if accepted by the jury, obviously would preclude
conviction upon the charge of distribution and would eliminate
part of the basis for the charge of conspiracy.
As for the failed transaction of October 6, McCoy maintains
that he did not know Sanders intended to sell cocaine base
and that he did not realize "something was not proper" until
the police stopped his vehicle. To convict McCoy of conspira-
cy under 21 U.S.C. s 846 the Government must prove he had
"the specific intent to further the common unlawful objective"
of the conspiracy. United States v. Childress, 58 F.3d 693,
707-08 (D.C. Cir. 1995). McCoy's claim that he did not know
Sanders intended to sell cocaine base on October 6 amounts
to an assertion that he lacked the requisite intent to conspire
with Sanders. If a jury was to conclude the Government has
not proved beyond a reasonable doubt that McCoy did partici-
pate in the sale on July 9, and to accept his claim that he
lacked specific intent to conspire with Sanders on October 6,
McCoy could not be convicted of the charge of conspiracy.
Accordingly, we hold that McCoy has presented a legally
cognizable defense to each of the charges against him.
B. Involuntariness of the Plea
Prior to sentencing the "standard for allowing withdrawal
of a plea is fairly lenient when the defendant can show that
the plea was entered unconstitutionally." Taylor, 139 F.3d at
929; see Cray, 47 F.3d at 1207. McCoy contends that his
plea was entered unconstitutionally because it was based
upon legal assistance so defective as to deprive him of his
constitutional right to assistance of counsel. A plea of guilty
is constitutionally valid if and only if it "represents a volun-
tary and intelligent choice among the alternative courses of
action open to the defendant." Hill v. Lockhart, 474 U.S. 52,
56 (1985); see United States v. Loughery, 908 F.2d 1014, 1019
(D.C. Cir. 1990). A plea based upon advice of counsel that
"falls below the level of reasonable competence such that the
defendant does not receive effective assistance," Loughery,
908 F.2d at 1019, is neither voluntary nor intelligent. See
Taylor, 139 F.3d at 929.
In order to show that his plea was based upon constitution-
ally deficient assistance of counsel, the defendant must "ordi-
narily satisfy the two-pronged standard of Strickland v.
Washington, 466 U.S. 668, 687 (1984)." Id. He must show:
(1) "that his counsel's performance 'fell below an objective
standard of reasonableness' by identifying specific 'acts or
omissions of counsel that are alleged not to have been the
result of reasonable professional judgment' "; and (2) " 'that
there is a reasonable probability that, but for counsel's errors,
he would not have pleaded guilty and would have insisted on
going to trial.' " Id. 929-30. In this context, a "reasonable
probability" is one "sufficient to undermine confidence" in the
defendant's decision to plead guilty. Strickland, 466 U.S. at
694; see Hill, 474 U.S. at 59.
Usually a claim of "ineffective assistance of counsel ...
require[s] an evidentiary hearing"; indeed, where the defen-
dant did not raise the claim before the district court, our
standard practice is to remand for such a hearing. United
States v. Gaviria, 116 F.3d 1498, 1513 (D.C. Cir. 1997). In
this case, however, "the record is so clear that remand is
unnecessary," United States v. Soto, 132 F.3d 56, 59 (D.C.
Cir. 1997); this court can confidently resolve McCoy's claim
in the first instance.
McCoy contends that his counsel's performance "fell below
an objective standard of reasonableness" because she failed
correctly to apply the career offender provisions of the Guide-
lines when determining the sentencing range McCoy would
face if he accepted the Government's plea agreement. His
claim finds ample support in precedent. In Gaviria one
defendant had refused to plead guilty to the charge of con-
spiracy to distribute narcotics because his counsel had in-
formed him that he would be treated as a career offender
under the Guidelines and be subject to a sentence of from 360
months to life in prison. See 116 F.3d at 1512. Almost a
year earlier, however, we had held in United States v. Price,
990 F.2d 1367, 1370 (1993), that a conspiracy conviction did
not count as a predicate crime for purposes of the career
offender provisions of the Guidelines. Because the defen-
dant's counsel failed to realize that Price precluded treating
the defendant as a career offender, we held counsel's perfor-
mance was constitutionally deficient. See id.
The mistake McCoy's counsel made was even more egre-
gious than that made in Gaviria. Whereas counsel in Gavi-
ria had failed to find and apply a case interpreting the
Guidelines, McCoy's counsel failed to follow the formula
specified on the face of the Guidelines. Of course not every
error made in applying the Guidelines amounts to deficient
performance under the standard of Strickland but, as a sister
circuit pointed out some years ago in a case very similar to
this, "familiarity with the structure and basic content of the
Guidelines (including the definition and implications of career
offender status) has become a necessity for counsel who seek
to give effective representation." United States v. Day, 969
F.2d 39, 43 (3d Cir. 1992). We therefore hold that McCoy
has demonstrated that his counsel's performance was consti-
tutionally deficient.
McCoy has also satisfied the second part of the Strickland
test: He has shown a "reasonable probability" that but for his
counsel's mistake he would not have pleaded guilty. Counsel
told McCoy that by accepting the plea he would get a prison
sentence in the range from 188 to 235 months; in fact, he
faced a range of 262 to 327 months. The difference between
counsel's predicted range and McCoy's actual range--more
than six years between the respective low ends and almost
eight years between the respective high ends--is significant.
The Government argues, however, that McCoy probably
would have pleaded guilty even if he had known the actual
sentencing range he faced: he was never promised a specific
sentence prior to entering his plea, and he was facing a
mandatory life sentence if convicted after trial. But, as has
been pointed out before, a "defendant's understanding of the
maximum penalties he will face if he enters a guilty plea may
be of critical importance to the ... decision to accept the
Government's offer rather than assume the risks of a trial."
United States v. Horne, 987 F.2d 833, 840 (1993) (Buckley, J.
concurring). Although McCoy was never promised a specific
sentence if he pleaded guilty, it is undisputed that both his
own attorney and the prosecutor in this case told him that the
applicable sentencing range would be from 188 to 235 months
and he credibly argues that he relied--understandably, we
might add--upon that information. To be sure, McCoy has
not proven he would have gone to trial had his (or the
Government's) counsel not given him incorrect information,
but he has demonstrated a "reasonable probability" that he
would have done so.
We conclude that McCoy's decision to plead guilty was not
"a voluntary and intelligent choice among the alternative
courses of action open to [him]." We therefore hold that his
conviction is unconstitutional.
III. Conclusion
For the foregoing reasons, we remand this case to the
district court with instructions to grant McCoy's motion to
withdraw his plea of guilty.
It is so ordered.
Karen LeCraft Henderson, Circuit Judge, concurring:
I agree with the majority that the appellant has satisfied
the second prong of the Strickland v. Washington prejudice
test, but only barely. It seems unlikely, given the evidence
against him, the appellant would actually have chosen to risk
trial and mandatory life imprisonment rather than add 27
months to the 235 months he had already agreed to serve.
Nevertheless, the Strickland test requires only a reasonable
probability. Because the appellant has met this standard, I
concur in the majority opinion.