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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 13, 2004 Decided February 24, 2004
No. 03-3006
UNITED STATES OF AMERICA,
APPELLEE
v.
ADRIAN D. WILLIAMS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00404-01)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A. J. Kramer, Federal Public Defender. Neil H. Jaffee,
Assistant Federal Public Defender, entered an appearance.
John P. Gidez, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Roscoe C. Howard,
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
Jr., U.S. Attorney, and John R. Fisher, Elizabeth Trosman,
and Susan B. Menzer, Assistant U.S. Attorneys.
Before: EDWARDS and ROBERTS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: Appellant Adrian Williams was
convicted under 18 U.S.C. § 922(g)(1) of unlawful possession
of a firearm and ammunition by a convicted felon. At
Williams’ trial, police officers testified that they apprehended
Williams on the basis of information furnished by non-
testifying individuals that Williams had robbed them at gun-
point earlier in the evening. Despite repeated opportunities
to do so, Williams’ trial attorney never objected to the
admission of these out-of-court statements. In this appeal,
Williams seeks a new trial on the grounds that, because of his
trial attorney’s failure to object to the officers’ testimony, he
was deprived of effective assistance of counsel. Williams
alternatively seeks a remand of his case for resentencing,
alleging that the District Court erred in calculating his base
offense level under the governing sentencing guideline and
that his attorney again provided ineffective assistance by
failing to contest this error.
We agree with Williams that the officers’ testimony should
not have been admitted. On the record at hand, however, we
cannot determine conclusively whether defense counsel’s per-
formance was constitutionally ineffective. We therefore re-
mand the case to the District Court for an evidentiary
hearing on that issue. If the District Court finds that
Williams indeed was denied effective assistance of counsel,
Williams will be entitled to a new trial.
We find no merit in Williams’ challenges to his sentence.
Although the District Court erred in increasing Williams’
base offense level without first ascertaining whether Williams’
previous conviction amounted to a ‘‘crime of violence’’ within
the meaning of the sentencing guidelines, Williams has failed
to demonstrate sufficient prejudice to constitute plain error
or ineffective assistance. Therefore, if his conviction is ulti-
mately sustained on the basis of the verdict now on appeal,
then his sentence will stand.
3
I. BACKGROUND
The events leading to Williams’ arrest and conviction are
largely undisputed. On the evening of October 13, 2001,
officers of the Metropolitan Police Department were dis-
patched in large numbers to monitor crowds that had assem-
bled for homecoming events at Howard University in North-
west Washington. Around 10:00 p.m., Officers Wayne David
and Keith Gilbert were approached by two men who reported
that they had been robbed at gunpoint earlier in the evening.
The complaining witnesses informed the officers that they
had just seen the men who robbed them in the 700 block of
Euclid Street, but had not approached because they believed
their assailants to be armed. Officer Gilbert set off on foot in
search of the suspects, while Officer David and Officer Kevin
Rachlin, accompanied by the complaining witnesses, drove in
an unmarked car in search of individuals matching the de-
scriptions of the robbers.
As Officers David and Rachlin proceeded north toward the
intersection of Sherman Avenue and Euclid Street, they
observed a group of men cross the street ahead of their police
cruiser. Appellant Adrian Williams was among this group.
One of the complaining witnesses, who was in the vehicle with
the officers, identified ‘‘one of them right there’’ as a partici-
pant in the robbery. Trial Tr. at 58 (9/25/02). The officers
accordingly exited their vehicle and ordered the suspects to
stop. Williams ran. While other officers detained the other
suspects, Officer David pursued Williams in the police cruiser.
As Williams rounded the corner from Euclid Street to 9th
Street, Officer David observed him make a tossing motion
toward a grassy lot. The pursuit continued until Williams
was apprehended by other officers who had been called to the
scene.
After Williams was detained, Officer David returned to the
grassy lot at the corner of Euclid and 9th Streets, where he
discovered a loaded .380 caliber semiautomatic handgun.
Crime scene investigators arrived at the scene to recover the
weapon. Although there were several other items and debris
in the grassy lot, investigators did not recover anything other
4
than the handgun. The gun was subsequently test-fired and
found to be operational. Forensic investigators found no
DNA or fingerprints on the gun.
Williams was indicted on November 15, 2001, for possession
of a firearm and ammunition by a convicted felon, in violation
of 18 U.S.C. § 922(g)(1). Although there is no clear indica-
tion on the record before us, Williams contends – and the
Government does not dispute – that Williams was never
charged in connection with the armed robbery that allegedly
occurred on the night of October 13.
Williams’ first trial began on June 3, 2002. The District
Court declared a mistrial on June 7, 2002, after the jury failed
to reach a unanimous verdict. A second trial was held on
September 25, 2002. The Government’s evidence consisted
primarily of the testimony of three police officers. Officers
Kevin Rachlin and Keith Gilbert described the background
context of the alleged robbery and subsequent investigation.
Neither had seen Williams with a gun, and neither was with
Officer David when he saw Williams toss an object into the
grassy lot. Officer David testified as to his pursuit of
Williams, stating that he had observed Williams toss an object
from the area of his waistband into the grassy lot. He
acknowledged that he had not seen what the object was, and
he could not describe its size or color. The Government also
introduced expert testimony to the effect that it was difficult
to recover a useful fingerprint from a gun and that the
absence of any fingerprints on the gun recovered on October
13 was not unusual.
Williams introduced no evidence in his defense, though his
attorney attempted to impeach the Government’s witnesses
with prior inconsistent statements. The parties stipulated
that Williams previously had been convicted of a felony
punishable by a term of imprisonment exceeding one year
and that the firearm had traveled in interstate commerce.
The parties also stipulated that no DNA was detected on the
gun or ammunition and that it was generally rare for DNA to
be found on firearms.
5
Of particular relevance to this appeal, the prosecution and
defense stipulated at a hearing prior to Williams’ first trial
that the Government would not introduce any evidence that
the robbery being investigated when Williams was appre-
hended took place at gunpoint. See Hearing Tr. at 16-17
(5/30/02). The parties agreed that the police officers would
testify that they were in the area investigating ‘‘a robbery but
not a robbery with a gun.’’ Id. at 16. The officers’ testimony
adhered to this agreement at the first trial, which ended in
mistrial after the jury failed to reach a unanimous verdict.
At the second trial, however, the officers repeatedly stated
that Williams and the other suspects were detained on suspi-
cion of armed robbery. For example, Officer Rachlin testi-
fied that he became involved in the case when other officers
‘‘asked for our help in a rash of armed robberies that had just
occurred.’’ Trial Tr. at 21 (9/25/02). When he and the other
officers encountered Williams and the other individuals dur-
ing their investigation of that armed robbery, ‘‘one of the
witnesses TTT stated that was the suspect.’’ Id. at 25. Offi-
cer Rachlin further explained that he ‘‘centered on’’ a second
individual in the group, rather than Williams, because ‘‘[w]e
were told that all the suspects in this were armed.’’ Id. at 26.
Similarly, Officer Gilbert testified that the complaining
witnesses had informed the officers that they had just seen
their assailants, but that they ‘‘didn’t want to approach them
because all of them had guns.’’ Id. at 35. He further
testified that he and the other officers decided they needed ‘‘a
group of officers to help us’’ because ‘‘they said it was
multiple guns, multiple people – they said it was multiple
guns, multiple suspects with guns.’’ Id. at 36. While Officer
David refrained from referring to the robbery suspects as
‘‘armed,’’ his testimony on cross-examination confirmed that
Williams and the individuals accompanying him all matched
the complaining witnesses’ description of their assailants.
See id. at 77. Finally, in her rebuttal argument, the prosecu-
tor reminded the jury that the investigating officers believed
the suspects to be ‘‘armed and dangerous.’’ Id. at 148. At no
point did defense counsel ever object to any of these state-
ments.
6
The jury returned a guilty verdict at the conclusion of
Williams’ second trial. Williams was sentenced on January
13, 2003. A pre-sentence report (‘‘PSR’’) calculated Williams’
sentence under § 2K2.1 of the U.S. Sentencing Guidelines.
Under § 2K2.1, Williams’ initial base offense level for a
violation of 18 U.S.C. § 922(g)(1) was 14. Under
§ 2K2.1(a)(4)(A), Williams’ offense level would increase to 20
if Williams had one prior felony conviction for a ‘‘crime of
violence.’’ Williams previously had been convicted of ‘‘rob-
bery,’’ although the PSR indicated that no documents or
other details concerning the robbery conviction were avail-
able. The Government asserts in its brief before this court
that this conviction occurred when Williams pled guilty in
1994 to robbing another person at knife point. See Br. for
Appellee at 13 n.8. Although this information did not appear
in the PSR or elsewhere on the record before the District
Court, Williams does not dispute the Government’s character-
ization of his previous conviction.
Despite the absence of any facts concerning the prior
conviction, the PSR recommended a base offense level of 20.
Given Williams’ criminal history category, the corresponding
guideline range for this offense level was 51 to 63 months.
Upon receipt of the PSR, Williams’ trial attorney submitted
three factual corrections but otherwise lodged no objections.
The District Court adopted the findings and recommenda-
tions of the PSR and sentenced Williams to 63 months in
prison, to be followed by three years’ supervised release and
a special assessment of $100. This appeal followed.
II. ANALYSIS
A. Ineffective Assistance of Counsel at Trial
Williams contends that the police officers’ testimony that
non-testifying complaining witnesses claimed that they had
been robbed at gunpoint amounted to inadmissible hearsay
evidence. Although he does not argue that the District Court
erred in failing to exclude this evidence sua sponte, Williams
does claim that his trial attorney’s failure to object to its
admission constituted ineffective assistance of counsel and
7
that he is therefore entitled to a new trial. We agree with
Williams that the testimony was inadmissible and should have
been excluded upon objection. However, the record before
us does not establish conclusively whether defense counsel’s
performance was unconstitutionally deficient or prejudicial.
We therefore follow our general practice and remand the case
for an evidentiary hearing on that issue. See United States v.
Rashad, 331 F.3d 908, 909-10 (D.C. Cir. 2003). If the District
Court finds that Williams received ineffective assistance of
counsel, Williams must be afforded a new trial.
The Sixth Amendment right to counsel ‘‘ ‘is the right to the
effective assistance of counsel.’ ’’ Strickland v. Washington,
466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397
U.S. 759, 771 n.14 (1970)). We analyze Williams’ ineffective
assistance claim under the two-step analysis set forth by the
Supreme Court in Strickland. Williams must demonstrate
first that his trial attorney’s performance was deficient. Id.
at 687. The standard for attorney performance is ‘‘reason-
ably effective assistance,’’ or ‘‘reasonableness under prevail-
ing professional norms.’’ Id. at 687, 688. These professional
norms require that an attorney ‘‘ ‘inform[ ] himself TTT fully
on the facts and the law.’ ’’ United States v. Loughery, 908
F.2d 1014, 1018 (D.C. Cir. 1990) (quoting ABA Standards for
Criminal Justice 4-3.8, 4-5.1(a) (2d ed. 1980)); see also Unit-
ed States v. Gaviria, 116 F.3d 1498, 1512 (D.C. Cir. 1997).
Because trial counsel must have ‘‘wide latitude TTT in making
tactical decisions,’’ Strickland, 466 U.S. at 689, a reviewing
court must ‘‘determine whether, in light of all the circum-
stances, the identified acts or omissions were outside the wide
range of professionally competent assistance,’’ id. at 690.
Under the second step of the Strickland analysis, Williams
must show that his attorney’s deficient performance preju-
diced the outcome of his case; that is, that there is a
‘‘reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been differ-
ent.’’ Id. at 694. In the context of a challenge to a criminal
conviction, this standard requires an appellant to demonstrate
that ‘‘there is a reasonable probability that, absent the errors,
the factfinder would have had a reasonable doubt respecting
8
guilt.’’ Id. at 695. Williams need not show that his attor-
ney’s deficient performance ‘‘more likely than not’’ altered the
outcome of the case. Id. at 693. As this court has empha-
sized, ‘‘Strickland requires reasonable probability, not cer-
tainty.’’ Gaviria, 116 F.3d at 1514 (citing Strickland, 466
U.S. at 694). ‘‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’’ Strick-
land, 466 U.S. at 694.
Where an appellant argues for the first time on direct
appeal that trial counsel’s performance was constitutionally
ineffective, our general practice is to remand the case to the
district court for an evidentiary hearing. See Rashad, 331
F.3d at 909-10 (citing United States v. Fennell, 53 F.3d 1296,
1303-04 (D.C. Cir. 1995)). We will not remand a case, howev-
er, if the record conclusively establishes appellant’s entitle-
ment to relief. See id. at 910.
In this case, Williams argues that he was denied the
effective assistance of counsel when his trial attorney re-
peatedly failed to object to the disputed testimony at his
second trial – testimony that the parties had agreed would
not be admitted and that was legally inadmissible as hearsay.
There is no doubt that the police officers’ repeated references
to armed robbery at the second trial constituted a clear
breach of the parties’ pre-trial agreement. The same attor-
neys participated in Williams’ second trial as in the first trial,
and the Government does not claim that the parties’ agree-
ment had been rescinded or altered in any way between the
first and second trials. Nevertheless, the evidence that
Williams was suspected of armed robbery came into the
record in various forms repeatedly throughout the second
trial. We agree with Williams that the testimony was inad-
missible.
As a general matter, the Federal Rules of Evidence prohib-
it the admission of an out-of-court statement offered in evi-
dence to prove the truth of the matter asserted. See FED. R.
EVID. 801, 802. Such a statement may be admitted to serve a
non-hearsay purpose, however, such as elucidating a speak-
er’s or a listener’s state of mind, see United States v. Sesay,
9
313 F.3d 591, 599 (D.C. Cir. 2002), or providing background
information, see United States v. Gatling, 96 F.3d 1511, 1524
(D.C. Cir. 1996). As with all evidence, such a statement,
when offered for a permissible non-hearsay purpose, must be
relevant to a ‘‘fact TTT of consequence’’ in the case. FED. R.
EVID. 401; see also Sesay, 313 F.3d at 599-600; United States
v. Evans, 216 F.3d 80, 87 (D.C. Cir. 2000). Moreover, such a
statement may be excluded, even if relevant, if its probative
value is substantially outweighed by the danger of unfair
prejudice. FED. R. EVID. 403; see also Evans, 216 F.3d at 87-
89.
This court had occasion to consider a similar hearsay issue
in United States v. Evans, 216 F.3d 80 (D.C. Cir.), cert.
denied, 531 U.S. 971 (2000). In that case, a government
witness testified regarding the origins of an FBI undercover
operation. Id. at 84. In recounting why the FBI was
investigating the defendant, the witness stated that the FBI
had learned from an informant that the defendant was in-
volved in drug trafficking. Id. This court held that the
testimony constituted inadmissible hearsay, reasoning that
the testimony was relevant only if offered to prove the truth
of the matter asserted. See id. at 85. The Evans court
rejected the argument that the testimony could be admitted
to provide ‘‘background’’ information, because whatever mini-
mal value the testimony had for that purpose was outweighed
by the danger that the jury would consider the evidence for
its hearsay purpose. See id. at 87-89; see also Sesay, 313
F.3d at 599 (excluding testimony regarding an out-of-court
statement because its only relevance was for its truth and
because any value it may have had as background was
substantially outweighed by the danger of prejudice).
Under Evans, the officers’ testimony at Williams’ second
trial was inadmissible. To the extent that the testimony was
relevant to a fact of consequence in the trial – whether
Williams possessed a gun – the testimony is hearsay because
it is relevant only for its truth, i.e., that Williams possessed a
gun earlier in the evening during the commission of an armed
robbery. See Evans, 216 F.3d at 85; see also Sesay, 313 F.3d
at 599. To the extent that the testimony was offered as
10
‘‘background’’ information, the testimony is inadmissible be-
cause its considerable prejudicial effect substantially out-
weighed its minimal value as background. See Evans, 216
F.3d at 87-89; see also Sesay, 313 F.3d at 599. The prosecu-
tion easily could have explained the context of the events of
October 13 without referring to the robbery suspects as
armed; indeed, the prosecutor expressly agreed to do so
prior to the first trial. The Government attempts to distin-
guish Evans on the grounds that the officers’ testimony in
this case did not single out Williams as the sole suspect in the
armed robbery. This argument fails because, even if there
were additional suspects, the officers clearly testified that all
the suspects were considered to be armed on the basis of the
complaining witnesses’ statements. See, e.g., Trial Tr. at 26,
35, 36.
The Government’s reliance on United States v. Gatling, 96
F.3d 1511 (D.C. Cir. 1996), and similar cases is misplaced.
Those cases permitted the admission of hearsay testimony for
background purposes in situations where that testimony could
not reasonably be seen to prejudice the defendant. See id. at
1524 (finding the hearsay testimony to be ‘‘harmlessly cumu-
lative’’); United States v. Beck, 122 F.3d 676, 682 (8th Cir.
1997) (finding any possible error in admitting the hearsay to
be harmless). Indeed, the Evans court specifically distin-
guished Gatling as a case where hearsay was admissible for
background purposes only ‘‘where the evidence [was] on an
uncontroverted matter, where hearsay [was] the most effi-
cient means of transmitting it, and where there [was] little
chance of prejudice to the defendant.’’ Evans, 216 F.3d at 87.
Where those conditions are not met, ‘‘the government must
prove ‘background’ the same way it would any other set of
relevant facts,’’ i.e., without the use of hearsay testimony. Id.
The police officers’ testimony at Williams’ second trial was
therefore inadmissible under Evans.
Unlike Gatling, the officers’ testimony in this case present-
ed a clear danger of prejudice to Williams’ defense. Aside
from Officer David’s observation of Williams tossing an un-
identified object into the grassy lot, there was no evidence
connecting Williams to the handgun. At Williams’ first trial,
11
the jury could not reach a unanimous verdict on the strength
of this evidence. It was only at the second trial that the
Government’s case, bolstered by the inadmissible statements
implicating Williams in armed robbery, persuaded the jury
beyond a reasonable doubt that Williams indeed possessed
the handgun. Yet, despite the obviously damaging nature of
these statements, and despite having multiple opportunities to
do so, defense counsel never objected or took any other steps
to prevent the admission of this testimony. Nor did she take
any steps to mitigate its effect once it came into the record.
On remand, the District Court must consider whether there
is any plausible explanation for defense counsel’s continued
failure to object to the inadmissible testimony. We will leave
this issue for the District Court to address in the first
instance on remand. It is clear that defense counsel should
have been aware of the rules of hearsay generally and of the
Evans decision in particular. See Gaviria, 116 F.3d at 1512
(finding Strickland’s first prong satisfied where the defen-
dant’s attorney ‘‘should have been aware’’ of a recent decision
and its implications for the defendant’s case). If, after fur-
ther development of the record, the District Court finds that
the attorney’s failure to object reflected ignorance of the law,
rather than a reasonable strategic decision within ‘‘the wide
range of professionally competent assistance,’’ Strickland, 466
U.S. at 690, then the attorney’s performance must be deemed
deficient, and Williams will have satisfied the first element of
the Strickland analysis.
With respect to Strickland’s prejudice requirement, the
record before us suggests that trial counsel’s failure to object
was prejudicial to Williams’ defense. However, it is for the
District Court to develop the record further and determine in
the first instance whether the admission of this evidence was
sufficiently prejudicial as to ‘‘undermine confidence in the
outcome’’ of Williams’ trial. Strickland, 466 U.S. at 694.
We therefore remand Williams’ case for an evidentiary
hearing on the effectiveness of his trial attorney. If the
District Court determines that Williams’ trial counsel was
12
ineffective under Strickland, Williams must be afforded a new
trial.
B. Sentencing Issues
Williams further contends that the District Court erred in
calculating his base offense level under the Sentencing Guide-
lines and that his attorney was constitutionally ineffective by
failing to object to this error. We find no merit in these
claims. Although the District Court clearly erred by increas-
ing Williams’ base offense level without first ascertaining
whether Williams’ previous conviction of robbery constituted
a ‘‘crime of violence’’ within the meaning of the Sentencing
Guidelines, Williams fails to demonstrate sufficient prejudice
to satisfy either the plain error or ineffective assistance
standard.
A conviction under 18 U.S.C. § 922(g)(1) for unlawful pos-
session of a firearm or ammunition by a convicted felon is
sentenced pursuant to § 2K2.1 of the Sentencing Guidelines.
See U.S. SENTENCING GUIDELINES MANUAL (‘‘U.S.S.G.’’) app. A
(2001). Because Williams is a ‘‘prohibited person’’ under 18
U.S.C. § 922(g) by virtue of his prior felony conviction, his
base offense level should be at least 14 under § 2K2.1(a)(6) of
the Guidelines. Section 2K2.1(a)(4)(A), however, calls for a
base offense level of 20 if the defendant previously had
sustained one felony conviction for a ‘‘crime of violence.’’
U.S.S.G. § 2K2.1(a)(4)(A) (2001). For purposes of this Guide-
line, ‘‘crime of violence’’ is defined in accordance with
§ 4B1.2(a) and the accompanying application notes. See
U.S.S.G. § 2K2.1, cmt. n.5 (2001). Under § 4B1.2(a), the
term ‘‘crime of violence’’ means
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that –
(1) has as an element the use, attempted use, or
threatened use of physical force against the person
of another, or (2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential
risk of physical injury to another.
13
U.S.S.G. § 4B1.2(a) (2001). The corresponding application
note states that ‘‘crime of violence’’ includes, inter alia,
‘‘robbery.’’ U.S.S.G. § 4B1.2, cmt. n.1 (2001).
This court held in United States v. Mathis, 963 F.2d 399
(D.C. Cir. 1992), that the statutory definition of ‘‘robbery’’
under District of Columbia law includes offenses that do not
have as an element the use or threatened use of physical
force against another person. Id. at 408-09. A conviction of
‘‘robbery’’ therefore does not automatically constitute a ‘‘vio-
lent felony’’ for purposes of the sentence enhancement provi-
sion in 18 U.S.C. § 924(e). See id. at 409 (discussing Taylor
v. United States, 495 U.S. 575 (1990)). In United States v.
Hill, 131 F.3d 1056 (D.C. Cir. 1997), the court extended this
holding to the definition of ‘‘crime of violence’’ under
§ 2K2.1(a) of the Guidelines. Id. at 1061-65.
To determine whether a prior conviction constitutes a
‘‘crime of violence,’’ the sentencing court must consider the
statutory definition of the offense of conviction, and not the
particular circumstances under which that offense was com-
mitted. Id. at 1062 (citing Taylor, 495 U.S. at 600-02). As in
Mathis, Hill held that where the statutory definition of an
offense includes non-violent crimes, a sentencing court must
review the indictment or jury instructions to determine
whether a prior conviction was a ‘‘crime of violence’’ within
the meaning of the Guidelines. See id. In the special case
where a defendant pleads guilty to a lesser included offense
rather than the indicted offense, and where no jury instruc-
tions are available, a sentencing court must examine other
documents in the record, such as the judgment of conviction,
the plea agreement or other statement by the defendant on
the record, a presentence report adopted by the court, or the
factual findings of the sentencing judge. See id. at 1064-65.
In this case, Williams’ PSR indicates that Williams was
convicted of ‘‘robbery’’ in the District of Columbia Superior
Court in 1994, an offense for which he received a sentence of
30 to 90 months. No other information about this conviction
appears on the record before us, save for the representations
made by the parties in their briefs and at oral argument.
14
Nevertheless, the PSR recommended, and the District Court
agreed, that Williams’ base offense level under § 2K2.1 of the
Guidelines should be 20. Had the District Court examined
the record and found no evidence that Williams’ previous
conviction constituted a ‘‘crime of violence,’’ his base offense
level would have been only 14, resulting in a sentence range
of 27 to 33 months, instead of the 51 to 63 months that the
PSR recommended and the District Court adopted.
Under Hill and Mathis, the District Court clearly erred in
adopting the base offense level of 20 without confirming that
Williams’ 1994 robbery conviction constituted a ‘‘crime of
violence.’’ Williams did not object to this error, however,
either upon receipt of the PSR or at sentencing before the
District Court. We therefore review the sentencing judge’s
decision only for plain error. See FED. R. CRIM. P. 52(b);
United States v. Joaquin, 326 F.3d 1287, 1290 (D.C. Cir.
2003). We find that Williams has failed to demonstrate the
prejudice necessary to satisfy plain error review.
In the context of sentencing errors, the prejudice require-
ment under the plain error standard is ‘‘slightly less exacting
than it is in the context of trial errors.’’ United States v.
Saro, 24 F.3d 283, 287 (D.C. Cir. 1994). Nonetheless, a
defendant must still demonstrate ‘‘a reasonable likelihood
that the sentencing court’s obvious errors affected his sen-
tence.’’ Id. at 288. Williams cannot prevail, even under the
relaxed prejudice standard, merely by asserting that there
was error. Rather, the burden remains squarely on Williams
to provide the court with some basis for suspecting that a
reduction in his sentence is sufficiently likely to justify a
remand. See id. at 292. Our cases do not require Williams
to proffer new evidence establishing conclusively that his
sentence would be different absent the sentencing court’s
error; he need not even demonstrate that it is ‘‘more likely
than not’’ that his sentence will change. See id. But he must
offer some reason to suspect that the District Court’s error
likely resulted in an incorrect sentence. See United States v.
Childress, 58 F.3d 693, 724 (D.C. Cir. 1995) (‘‘Under Saro,
plain error can be established where the trial court fails to
make the requisite findings and it is reasonably likely that it
15
would have made a different attribution if it had made the
proper findings.’’) (emphasis added). Williams fails to carry
this burden.
There is simply nothing before us to suggest any likelihood
that the District Court would have assigned Williams a
different base offense level had it first conducted the proper
inquiry into the 1994 robbery conviction. To the contrary,
the only indications on this sparse record – including the
briefs to this court and the parties’ representations at oral
argument – suggest that, in fact, Williams’ sentence would
not be reduced. Thus, we cannot say that Williams has
satisfied his burden of demonstrating a ‘‘reasonable likeli-
hood’’ that the District Court’s error affected his sentence.
Saro, 24 F.3d at 288.
For the same reason, Williams fails to satisfy the prejudice
requirement of Strickland’s ineffective assistance analysis.
See id. at 287 (noting the ‘‘natural analogy’’ between claims of
plain error and claims of ineffective assistance and stating
that ‘‘the Strickland formulation of ‘prejudice’ comes quite
close to what we have required in plain-error cases’’); see
also United States v. Hall, 326 F.3d 1295, 1301 & n.10 (D.C.
Cir. 2003) (relying on the same prejudice analysis to reject
both plain error and ineffective assistance claims concerning
an alleged sentencing error). Even assuming arguendo that
Williams’ attorney erred in failing to object to the base
offense level, such error does not amount to ineffective assis-
tance of counsel where Williams has failed to present any
reason why that error should ‘‘undermine [our] confidence in
the outcome’’ of his sentencing proceeding. Strickland, 466
U.S. at 694.
III. CONCLUSION
We remand Williams’ case to the District Court for an
evidentiary hearing on the question of whether Williams was
denied the effective assistance of counsel when his trial
attorney failed to object to the admission of damaging hear-
say testimony. Should the District Court find that Williams
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satisfies the requirements of an ineffective assistance claim,
Williams will be entitled to a new trial.
We find no merit in Williams’ challenge to his sentence.
Therefore, if his conviction is ultimately sustained on the
basis of his second trial, then his sentence will stand.