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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 14, 2003 Decided August 19, 2003
No. 00-3120
UNITED STATES OF AMERICA,
APPELLEE
v.
MILTON J. TAYLOR,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 97cr00035-01)
Elaine J. Mittleman, appointed by the court, argued the
cause and filed the briefs for appellant.
Patricia A. Heffernan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and John R. Fisher, Thomas J.
Tourish, Jr., and S. Elisa Poteat, Assistant U.S. Attorneys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Barbara J. Valliere, Kenneth W. Cowgill, and Mary-Patrice
Brown, Assistant U.S. Attorneys, entered appearances.
Before: TATEL and GARLAND, Circuit Judges, and WILLIAMS,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Milton Taylor contends that he
was denied the effective assistance of counsel because his
attorney did not file a notice of appeal from the sentence
Taylor received after pleading guilty to a federal offense. We
conclude that Taylor’s counsel was not constitutionally inef-
fective under the test set forth in Roe v. Flores-Ortega, 528
U.S. 470 (2000), and we therefore affirm the judgment of the
district court.
I
On January 28, 1997, a federal grand jury indicted Taylor
and co-defendant Antoinette Stoddard on twelve counts of
violating federal and District of Columbia law in connection
with a scheme involving the theft of personal checks from the
mail, the creation or acquisition of false identification match-
ing the names on the stolen checks, the forging of signatures
on the checks, and the passing of the forged checks at area
stores. Taylor and Stoddard recruited others to assist in
various aspects of the scheme, particularly in the exchange of
the checks for store merchandise.
On May 19, 1997, Taylor entered into a written agreement
to plead guilty to one count of possession of stolen mail in
violation of 18 U.S.C. § 1708, in return for the government’s
agreement to drop the other charges and to terminate its
investigation of his activities. The agreement described the
parties’ joint understanding of which United States Sentenc-
ing Guidelines (U.S.S.G.) would likely apply to the case, but
also recited Taylor’s understanding that he faced a maximum
sentence of five years, that ‘‘the sentence to be imposed on
him TTT [would] be determined solely by the Court,’’ and that
‘‘he [could not] withdraw his guilty plea’’ if the court imposed
a sentence greater than that provided by the guidelines.
3
Plea Agreement ¶ 3 (May 19, 1997). It further noted, howev-
er, that Taylor ‘‘may have a right [to] appeal’’ the sentence.
Id. ¶ 3(c).
On the same day, the district court conducted the plea
hearing required by Federal Rule of Criminal Procedure 11.
During the course of the hearing, Taylor’s counsel, Shawn
Moore, told the court that he had advised Taylor that his
‘‘preliminary calculations’’ indicated a Sentencing Guidelines
range of ten to sixteen months’ imprisonment. 5/19/97 Tr. at
21. The court then warned Taylor that it would make its own
guidelines calculations, that it alone would decide the final
sentence, and that it was not possible to predict what the
result would be. Taylor said he understood, and after com-
pleting the requirements of Rule 11, the court accepted
Taylor’s plea.
The Presentence Investigation Report (PSR) prepared by
the United States Probation Office matched Moore’s guide-
lines calculations in all respects except one: the PSR recom-
mended an additional four-level enhancement under U.S.S.G.
§ 3B1.1(a), based on Taylor’s role as an organizer or leader of
the criminal activity involved in the scheme. Taylor filed an
objection to the report, contending that, at most, a three-level
enhancement was appropriate under § 3B1.1(b). On Novem-
ber 4, 1997, the district court conducted a presentence hear-
ing at which the prosecutor informed the court that she had
eleven witnesses available to testify regarding Taylor’s role if
he truly meant to contest the issue.
The sentencing hearing was held on November 13, 1997.
In his opening statement, Moore declared the defense’s desire
to withdraw its objection to the four-level ‘‘organizer or
leader’’ enhancement. After reviewing the evidence and the
law, the court concluded that the enhancement was appropri-
ate. It then calculated the relevant Sentencing Guidelines
range as 21 to 27 months’ imprisonment (plus time on super-
vised release). At that point, the court advised the parties
that the remaining issue was where within that range the
defendant should be sentenced. When given his turn to
speak, Taylor complained that it was not he but his co-
4
defendant, Stoddard, who had been the ‘‘mastermind’’ of the
scheme.
The court sentenced Taylor to 27 months’ imprisonment, to
be followed by 36 months of supervised release. After pro-
nouncing the sentence, the court advised Taylor of his right to
appeal. Taylor then, unbidden, asked the court if he could
‘‘get an order forthwith,’’ by which he apparently meant a
direction to the U.S. Marshals to take him directly to a
federal prison without stopping at the D.C. Jail. 11/13/97 Tr.
at 30. After saying it would do what it could to accommodate
him, the court asked Taylor whether there was ‘‘[a]nything
else.’’ Id. at 32. Taylor responded that, despite suggestions
to the contrary by the government, he had never intimidated
any witnesses. After the judge assured Taylor that he had
not taken the allegations of intimidation into account in
setting the sentence, Taylor thanked the court and the hear-
ing concluded.
Neither Taylor nor his counsel filed a notice of appeal
within the ten-day period fixed by Federal Rule of Appellate
Procedure 4(b)(1)(A). However, on March 16, 1998, Taylor
sent a letter to the district court, raising a number of
challenges to his conviction and sentence. In particular, he
contended that Moore had failed to honor Taylor’s request,
allegedly made immediately after the sentencing hearing, that
he file a notice of appeal on Taylor’s behalf. Taylor also
alleged that his wife had tried to contact Moore to ask him to
file an appeal, but that Moore had failed to respond to two
telephone messages that she had left with his secretary.
The district court treated Taylor’s letter as a motion to
vacate his sentence under 28 U.S.C. § 2255. The court
appointed an attorney to represent Taylor, and the attorney
supplemented Taylor’s initial letter by adding two new claims
of ineffective assistance of counsel: that Moore had failed to
investigate and pursue an entrapment defense, and that he
had been ineffective in failing to anticipate the four-level
enhancement under § 3B1.1(a). On August 14, 2000, the
district court denied those two claims. The court held that
Moore had in fact investigated a possible entrapment defense,
5
but that he had rightly concluded there was no basis for such
a defense. It further held that Moore’s failure to predict the
§ 3B1.1(a) enhancement was not prejudicial because the court
itself had made clear to Taylor, before accepting his plea, that
his sentence would be determined by the court and could not
be predicted.
This left only the question of whether Moore had been
constitutionally ineffective in failing to file a notice of appeal.
The court held an evidentiary hearing on that question on
November 8, 2000. Taylor testified that before he was taken
from the courtroom after the sentencing, he had personally
asked Moore to file an appeal. Taylor’s wife testified that she
had called Moore to ask him to do the same, but that he had
not returned her messages. In contrast, Moore testified that
Taylor had never asked him to appeal and that he had never
received any messages from Taylor’s wife. The court credit-
ed Moore’s testimony. Applying Roe v. Flores-Ortega, 528
U.S. 470 (2000), the court concluded that Moore had not been
constitutionally ineffective in failing to file a notice of appeal
because: Taylor had not asked Moore to file an appeal; there
was no reason to believe that a rational defendant would have
wanted to appeal; and Taylor had not otherwise demonstrat-
ed any interest in appealing.
Taylor filed a notice of appeal from the district court’s
dismissal of his § 2255 motion on November 17, 2000. We
directed the court to determine whether a certificate of
appealability should issue, see 28 U.S.C. § 2253(c), and there-
after the district court issued a certificate with respect to
three ineffectiveness claims: (1) Moore’s failure to file a
notice of appeal; (2) Moore’s failure to pursue a possible
entrapment defense while advising Taylor to accept a plea;
and (3) Moore’s incorrect calculation of the defendant’s possi-
ble Sentencing Guidelines range when explaining the conse-
quences of pleading guilty. Before this court, Taylor has
briefed and argued only the first claim, and has further
limited that claim to Moore’s failure to file an appeal of the
four-level enhancement of § 3B1.1(a). The defendant has not
argued the other two claims, which effectively go to the
question of whether he should be permitted to withdraw his
6
plea. Taylor has adopted this strategy, we assume, because
he has little to gain and much to lose by withdrawing his plea
and submitting his case to a jury: the evidence of his guilt
appears to be overwhelming, while the plea bargain agreed to
by the government is, in the district court’s apt description, a
‘‘generous’’ one. 11/8/00 Tr. at 103.
Taylor’s briefs ask us to hold the other two claims in
abeyance, and to permit supplemental briefing if we deter-
mine that he is not entitled to a direct appeal. But those
issues were decided by the district court and are ripe for our
consideration. Accordingly, Taylor was required to raise
them in his opening brief, and his failure to do so constitutes
waiver as far as this appeal is concerned. See Anderson v.
Litscher, 281 F.3d 672, 675 (7th Cir. 2002) (holding that when
an appellant fails to brief claims on which a certificate of
appealability has issued, those claims are waived); see also
Artis v. Greenspan, 158 F.3d 1301, 1302 n.1 (D.C. Cir. 1998);
Terry v. Reno, 101 F.3d 1412, 1415 (D.C. Cir. 1996).1 That
leaves for our consideration only the question of whether
Taylor’s counsel was constitutionally ineffective for failing to
file a notice of appeal from the sentence imposed by the
district court.
II
In general, claims of ineffective assistance of counsel are
governed by the test set forth in Strickland v. Washington,
466 U.S. 668 (1984). Under that test, a defendant claiming
ineffective assistance must show: (1) ‘‘that counsel’s repre-
sentation fell below an objective standard of reasonableness,’’
and (2) ‘‘that the deficient performance prejudiced the de-
fense.’’ 466 U.S. at 687–88; see Hill v. Lockhart, 474 U.S. 52,
57–58 (1985) (applying the Strickland framework to ineffec-
tive assistance claims in the context of guilty pleas). In Roe
v. Flores-Ortega, the Supreme Court extended Strickland to
claims of ineffective assistance based on a defense attorney’s
failure to file a notice of appeal. 528 U.S. at 476–77. Be-
cause we conclude that Taylor cannot satisfy the first prong
1 Taylor’s brief ‘‘presum[es]’’ that he may raise the two claims in
a subsequent motion under 28 U.S.C. § 2255. Appellant’s Br. at 10.
Although we doubt that those claims survive his waiver here, that
issue is not before us.
7
of the Strickland test, we need not consider the second-prong
issue of whether Taylor was prejudiced. See Strickland, 466
U.S. at 697.
Flores-Ortega directs that the first question we must exam-
ine under Strickland’s reasonableness standard is whether
the defendant instructed his attorney to file an appeal.
Flores-Ortega, 528 U.S. at 477. As the Court said, ‘‘a lawyer
who disregards specific instructions from the defendant to file
a notice of appeal acts in a manner that is professionally
unreasonable.’’ Id. At the § 2255 evidentiary hearing, Tay-
lor testified that after the sentencing he expressly told Moore
that he wanted to appeal; in addition, Taylor’s wife testified
that she called Moore to ask him to file the necessary papers,
leaving messages when she was unable to reach him. Moore
testified that Taylor had never told him, after the sentencing
or at any other time, that he wanted to appeal; nor did
Moore ever receive a message from Taylor’s wife.
The district judge, having heard the witnesses testify in
person, credited Moore’s version of the events. He did so
based not only on Moore’s and Taylor’s specific testimony,
but also on his opportunity to observe both of them during
the evidentiary hearing: ‘‘I have a lot of problems with Mr.
Taylor’s credibility based on my experience in this case and I
don’t have problems with Mr. Moore’s credibility.’’ 11/8/00
Tr. at 100. Moreover, the judge noted that, although he had
personally advised Taylor of his right to appeal and had given
him several opportunities to say anything he wanted, and
although Taylor ‘‘was not reticent during the course of the
sentencing proceedings, [speaking] up several times,’’ the
defendant had never mentioned an appeal. Id. at 98. On
these grounds, the court found that neither Taylor nor his
wife had asked (or attempted to ask) Moore to file an appeal.
We review ‘‘[t]he district court’s findings of fact in [this]
collateral proceeding TTT under the deferential ‘clearly erro-
neous’ standard,’’ United States v. Streater, 70 F.3d 1314,
1318 (D.C. Cir. 1995), and we perceive no clear error here.
Where a defendant did not instruct his attorney to appeal,
Flores-Ortega requires that we determine whether the defen-
dant ‘‘explicitly [told] his attorney not to file an appeal,’’
8
because if so he ‘‘cannot later complain that, by following his
instructions, his counsel performed deficiently.’’ 528 U.S. at
477. As no one contends that was the case here, we must
next ask ‘‘whether counsel in fact consulted with the defen-
dant about an appeal.’’ Id. at 478. If he did, then ‘‘[c]ounsel
performs in a professionally unreasonable manner only by
failing to follow the defendant’s express instructions with
respect to an appeal.’’ Id. Again, there is no dispute that,
while Moore did advise Taylor in advance of the sentencing
hearing that he would have the right to appeal, counsel did
not consult with the defendant about an appeal after the
sentence was pronounced.
This brings us to the last question Flores-Ortega makes
relevant to this case: ‘‘whether counsel’s failure to consult
with the defendant itself constitutes deficient performance.’’
Id. Although the Court made clear ‘‘that the better practice
is for counsel routinely to consult with the defendant regard-
ing the possibility of an appeal,’’ it ‘‘reject[ed] a TTT rule that
counsel must always consult with the defendant regarding an
appeal.’’ Id. at 479–80. Instead, the Court said, ‘‘counsel has
a constitutionally imposed duty to consult’’ only when ‘‘there
is reason to think either (1) that a rational defendant would
want to appeal (for example, because there are nonfrivolous
grounds for appeal), or (2) that this particular defendant
reasonably demonstrated to counsel that he was interested in
appealing.’’ Id. We now turn to these two parts of the
Flores-Ortega test.
A
Flores-Ortega indicates that ‘‘there is reason to think TTT
that a rational defendant would want to appeal’’ where ‘‘there
are nonfrivolous grounds for appeal.’’ Id. We do not per-
ceive any nonfrivolous grounds here. The only ground urged
in Taylor’s briefs is that the sentencing court erred in enhanc-
ing his guidelines offense level pursuant to U.S.S.G.
§ 3B1.1(a). That guideline instructs the sentencing court to
increase a defendant’s offense level by four ‘‘[i]f the defendant
was an organizer or leader of a criminal activity that involved
9
five or more participants or was otherwise extensive.’’
U.S.S.G. MANUAL § 3B1.1(a). Based on Taylor’s admissions
to the Probation Office, the district court made findings that
put Taylor comfortably within the category of defendants to
which this guideline applies:
[H]e acknowledges that there were more than five people
involved in the scheme TTT so therefore TTT I find that
there were as required by 3B1.1 the five or more partici-
pantsTTTT And I find TTT the statements in the presen-
tence report, many of which Mr. Taylor himself TTT
provided to the probation officer, make him an organizer,
and a leader. Looking at the application note [for]
3B1.1, he had decisionmaking authority. He recruited
some of the accomplices and he clearly controlled and
exercised authority over the others in the scheme.
Whether or not he and Miss Stoddard had an equal level
of control or whether she was his lieutenant or whether
she initiated it, clearly his activities constituted leader-
ship of the scheme, and I think under the case law and
the application notes there doesn’t have to be a single
leader of the scheme. There can be more than one to
justify the four point upward adjustmentTTTT I find that
the four points should be added.
11/13/97 Tr. at 15–16. Taylor has not challenged any of the
district court’s factual findings. Even if he had, we would
accept those findings ‘‘unless they [were] clearly erroneous.’’
18 U.S.C. § 3742(e); see United States v. Wilson, 240 F.3d
39, 46 (D.C. Cir. 2001). Since the court’s findings were based
on Taylor’s own admissions to the Probation Office, there is
no basis for our regarding them as error.2
Taylor suggests that the district court’s error was in apply-
ing the law to the facts, because Stoddard, not he, was the
‘‘ringleader’’ of the conspiracy. Even if true, the district
2 Taylor admitted that he had ‘‘recruited [a total of seven] individ-
uals for participation [in the scheme], accompanied them when they
obtained fraudulent identification and went on their shopping
sprees, dictated the items to be purchased by the individuals, and
received a larger share of the profits and merchandise.’’ PSR at 37.
10
court correctly noted that Taylor would nonetheless remain
within the compass of § 3B1.1(a). As Application Note 4 to
the guideline explains:
In distinguishing a leadership and organizational role
from one of mere management or supervision, titles such
as ‘‘kingpin’’ or ‘‘boss’’ are not controlling. Factors the
court should consider include the exercise of decision
making authority, the nature of participation in the com-
mission of the offense, the recruitment of accomplices,
the claimed right to a larger share of the fruits of the
crime, the degree of participation in planning or organiz-
ing the offense, the nature and scope of the illegal
activity, and the degree of control and authority exer-
cised over others. There can, of course, be more than
one person who qualifies as a leader or organizer of a
criminal association or conspiracy.
U.S.S.G. MANUAL § 3B1.1, cmt. n.4 (emphasis added); see
Wilson, 240 F.3d at 46. We owe the district court’s applica-
tion of the guidelines to the facts ‘‘due deference.’’ 18 U.S.C.
§ 3742(e). Moreover, because Taylor withdrew his objection
to the application of § 3B1.1(a) during the sentencing hear-
ing, on direct appeal we would review the court’s determina-
tion only for plain error. See FED. R. CRIM. P. 52; United
States v. Olano, 507 U.S. 725, 732 (1993). In light of Taylor’s
admissions and the text of the application note, the possibility
that we would find plain error is vanishingly small.
Nor can we conceive of any other ground upon which
Taylor might have based a sentencing appeal. And we are
not alone. When Taylor’s appellate counsel was pressed at
oral argument, she could offer no ground other than the
alleged error in applying § 3B1.1(a). She did, however,
direct us to the Supreme Court’s statement, which appears in
the section of Flores-Ortega discussing Strickland’s prejudice
prong, that ‘‘it is unfair to require an indigent, perhaps pro se,
defendant to demonstrate that his hypothetical appeal might
have had merit before any advocate has ever reviewed the
record in his case in search of potentially meritorious grounds
for appeal.’’ 528 U.S. at 486 (emphasis omitted). But that
11
admonition does not apply here: the district court appointed
counsel to represent Taylor during his § 2255 proceeding,
and we appointed counsel to represent him on appeal. Yet,
despite the fact that two advocates have now reviewed the
record ‘‘in search of potentially meritorious grounds for ap-
peal,’’ none has appeared.
Flores-Ortega also instructs that, in considering whether
counsel had a constitutionally imposed duty to consult with
the defendant about an appeal, ‘‘a highly relevant factor TTT
will be whether the conviction follows a TTT guilty plea, both
because a guilty plea reduces the scope of potentially appeal-
able issues and because such a plea may indicate that the
defendant seeks an end to judicial proceedings.’’ Id. at 480.
Although the latter point seems to us to go more to the
second part of the Flores-Ortega test than to the first, the
former point is certainly relevant here: Taylor did plead
guilty, and that plea did in fact reduce the scope of potentially
appealable issues — to the degree that Taylor had nothing
left other than the frivolous § 3B1.1 claim discussed above.
Flores-Ortega further directs that ‘‘[e]ven in cases when the
defendant pleads guilty, the court must consider such factors
as whether the defendant received the sentence bargained for
as part of the plea and whether the plea expressly reserved
or waived some or all appeal rights.’’ Id. For reasons
considered in Part II.B, the first of these factors, whether
Taylor received the sentence for which he had bargained, is of
no assistance to him. Nor is the second factor of any help,
because while Taylor did not waive the right to appeal his
sentence, he had no nonfrivolous issue upon which to base any
such appeal.
In sum, Taylor has not proffered any ground that would
have given his counsel ‘‘reason to think TTT that a rational
defendant would want to appeal’’ the sentence that was
imposed on him. Id. Accordingly, he cannot satisfy the first
part of the Flores-Ortega test.
B
The second part of the Flores-Ortega test requires us to
determine whether ‘‘there is reason to think TTT that this
12
particular defendant reasonably demonstrated to counsel that
he was interested in appealing.’’ 528 U.S. at 480. In making
that determination, we ‘‘must take into account all the infor-
mation counsel knew or should have known.’’ Id. One thing
Taylor’s lawyer knew was that his client had pled guilty, thus
indicating that he sought ‘‘an end to judicial proceedings.’’
Id. Taylor asserts, however, that his counsel also knew that
he had not ‘‘received the sentence bargained for as part of the
plea.’’ Id.
But Taylor’s assertion is not quite accurate. As part of the
plea agreement, the prosecution dropped eleven charges of
forging and passing checks stolen from the mail, and pledged
not to indict Taylor on further charges that might evolve from
a still-ongoing investigation of ‘‘Treasury check forgeries and
thefts.’’ Plea Agreement ¶ 2. In exchange, Taylor agreed to
plead to a single count of theft or receipt of stolen mail, with
the ‘‘understand[ing] that the sentence to be imposed in [the]
case [would] be determined in accordance with’’ the Sentenc-
ing Guidelines. Id. ¶ 3. As Part I demonstrates, that is
exactly how Taylor’s sentence was determined. And while it
is true that his defense counsel made sentencing predictions
that failed to take into account the four-level enhancement of
§ 3B1.1(a), the district court clearly advised Taylor that it
would do its ‘‘own analysis under the guidelines,’’ that the
court would make the final decision regarding Taylor’s sen-
tence, and that ‘‘no one knows yet what your sentence would
be.’’ 5/19/97 Tr. at 24, 28. When Taylor said that he
understood and wanted to plead guilty nonetheless, he accept-
ed the possibility — as part of the ‘‘sentence bargained
for’’ — that the court’s guidelines calculation would differ
from that of his lawyer. See United States v. Horne, 987
F.2d 833, 837–38 (D.C. Cir. 1993).
Moreover, there was still more that defense counsel knew
regarding whether Taylor was satisfied with his sentence.
The four-level enhancement for Taylor’s role in the scheme
was first recommended by the Probation Office in its PSR of
July 7, 1997. In the objections he filed to that report, Taylor
challenged the appropriateness of a four-level enhancement,
arguing that he ‘‘should be given at most a three-level en-
13
hancement.’’ PSR at 37. The difference between three and
four levels was only a three-month increase in the guidelines
range. See U.S.S.G. MANUAL ch. 5, pt. A; PSR at 20–21;
11/13/97 Tr. at 25–29. At the presentence hearing held on
November 4, the prosecutor advised the court that if Taylor
continued to contest the four-level enhancement, she would
offer eleven witnesses to testify regarding his role in the
offense. As Taylor conceded, that warning caused the de-
fense to reevaluate its position, see 11/8/00 Tr. at 14, a logical
step since such witnesses could have persuaded the court not
only to reject Taylor’s objection but also to sentence him at
the top of the resulting guidelines range.
By the time the sentencing hearing itself commenced on
November 13, Taylor and his counsel had agreed to rescind
the objection to the four-level enhancement. At the begin-
ning of the hearing, before the prosecutor could offer her
witnesses in support of the ‘‘organizer or leader’’ enhance-
ment, Moore withdrew his client’s objection. See 11/13/97 Tr.
at 3 (‘‘[T]hat’s no longer a contested issue. So there’s not
going to be an evidentiary hearing or a fight about that. I
discussed that with Mr. Taylor.’’). Accordingly, when the
court thereafter pronounced Taylor’s sentence, it was indis-
putably within the sentencing range that Taylor and his
counsel had anticipated from the outset of the hearing, and
there was thus no reason for Moore to believe that Taylor
was dissatisfied or would want to appeal.
Nor did Taylor say anything at the sentencing hearing to
suggest that he was interested in an appeal, despite the
several opportunities the court gave him to say whatever he
wished. See id. at 22, 25, 32. Indeed, after the court
pronounced the sentence and advised Taylor of his right to
appeal, Taylor, without awaiting an invitation to speak, asked
not about an appeal but rather whether he could ‘‘get an
order forthwith’’ for transfer to a federal prison. Id. at 30.
The court said that it would try ‘‘to accommodate Mr. Tay-
lor’s request.’’ Id. at 31. And when the court asked whether
there was ‘‘[a]nything else, Mr. Taylor,’’ the defendant again
did not respond with a question about his appeal rights, but
rather by telling the judge that he had not intimidated any
14
witnesses. Id. at 32. To this, too, the court replied in a way
that left Taylor satisfied, assuring him that allegations of
obstruction had played no role in the sentence that the court
had imposed. Id. Taylor responded with a ‘‘thank you.’’ Id.
As the court later noted in rejecting Taylor’s § 2255 motion,
the defendant ‘‘was not reticent during the course of the
sentencing proceeding,’’ and it was reasonable to expect that
had he wanted to appeal he would have said so. 11/8/00 Tr.
at 98.
Taylor argues that counsel should have realized that he
wanted to appeal the § 3B1.1 determination because, prior to
the pronouncement of the sentence, he had told the court that
it was his co-defendant Stoddard, not he, who was the ‘‘mas-
termind’’ of the scheme. But in light of the fact that Taylor
had withdrawn his objection to the § 3B1.1(a) enhancement
just moments before, reasonable counsel would have under-
stood that statement as Taylor’s effort to persuade the court
to sentence him at the lower end of the guidelines range,
rather than as a challenge to the calculation of the range
itself. That is particularly so because Taylor’s remark came
in response to the court’s request for comments from the
parties regarding ‘‘the appropriate sentence within [the]
range.’’ 11/13/97 Tr. at 19.
Finally, Taylor’s appellate counsel contended at oral argu-
ment that there was no need for the defendant to demon-
strate an interest in appealing, because the district court
itself advised him that ‘‘Mr. Moore will file a notice of appeal
for you.’’ See id. at 30. That, counsel claims, misled Taylor
into believing that an appeal would be filed automatically and
that he therefore did not have to say anything to Moore. But
this claim relies on a selective quotation of the court’s advice
regarding Taylor’s right to file an appeal, the full recitation of
which makes such confusion appear implausible:
You may appeal this sentence and you have ten days
within which to do so. Mr. Moore will file a notice of
15
appeal for you and will either represent you on appeal or
will provide you with the necessary papers so I can
appoint another lawyer for you if [you] want to appeal it.
Id. (emphasis added). In short, the court advised Taylor that
Moore would file an appeal for him if he wanted to appeal,
not that Moore would file one automatically.
We therefore conclude that ‘‘this particular defendant’’ did
not ‘‘reasonably demonstrat[e] to counsel that he was inter-
ested in appealing,’’ Flores-Ortega, 528 U.S. at 480, and he is
thus unable to satisfy the second part of the Flores-Ortega
test.
III
Like the Supreme Court, we believe ‘‘that the better prac-
tice is for counsel routinely to consult with the defendant
regarding the possibility of an appeal,’’ and we exhort all
defense counsel in this circuit to follow that practice. Flores-
Ortega, 528 U.S. at 479. Flores-Ortega makes clear, however,
that such consultation is not constitutionally required in all
cases, and this case plainly is one of those in which there was
no ‘‘constitutionally imposed duty to consult.’’ Id. at 480.
Accordingly, the judgment of the district court is
Affirmed.