United States v. Curry

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 13, 2007 Decided July 31, 2007

No. 05-3101

UNITED STATES OF AMERICA,
APPELLEE

v.

GREGORY CURRY,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 03cr00305-01)

Mary E. Davis, appointed by the court, argued the cause and
filed the brief for appellant.

Cassidy Kesler Pinegar, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and Roy W. McLeese, III, Elizabeth Trosman, and
Kenneth F. Whitted, Assistant U.S. Attorneys.

Before: TATEL, GARLAND, and KAVANAUGH, Circuit
Judges.

Opinion for the court filed by Circuit Judge GARLAND.
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GARLAND, Circuit Judge: Gregory Curry pled guilty to a
single count of conspiring to distribute and to possess with intent
to distribute cocaine base, in exchange for the government’s
agreement to drop numerous additional charges. Before he was
sentenced, Curry moved to withdraw his plea, arguing that his
attorney’s advice that his case was “hopeless” amounted to
constitutionally ineffective assistance. The district court denied
the motion. On appeal, Curry contends that the court abused its
discretion in denying his request to withdraw his plea. We reject
that contention and affirm the judgment of the district court.

I

On July 17, 2003, a grand jury returned a twelve-count
indictment against Curry and co-defendant Ann Arrington.
Count One charged the defendants with conspiracy to distribute
and to possess with intent to distribute 50 grams or more of
cocaine base (“crack”), in violation of 21 U.S.C. § 846 and §
841(a)(1). The remaining counts charged additional violations
of the narcotics and firearms laws. On November 6, 2003,
Arrington pled guilty to Count One, and to a similar count in an
unrelated case.

The day before Curry’s trial was scheduled to begin, the
district court conducted a hearing on Curry’s motion to suppress
evidence. At that hearing, FBI Special Agent Brian Wilhite
testified in considerable detail about the events that preceded
Curry’s arrest on June 18, 2003. Wilhite testified as follows.

On June 6, 2003, the FBI employed an informant to make
a “controlled buy” of 31 grams of crack from Curry, using
Arrington as an intermediary. Agent Wilhite searched the
informant and the informant’s vehicle and gave the informant
recorded funds to use for the purchase. Agents then followed
the informant to Arrington’s apartment on 61st Street in
 3

northeast Washington, D.C., maintaining video and audio
surveillance. After the informant arrived, Arrington called
Curry, who drove up in a red Cadillac a short time later.
Arrington went outside, got into the car with Curry, and then got
out. Curry then drove away, and some time later other agents
videotaped him arriving at 5909 Clay Street, N.E., where he
entered and exited apartment 204. Shortly thereafter, Curry
returned to Arrington’s residence and parked immediately
behind the informant’s car, in which Arrington and the
informant were then sitting. Arrington got out of the
informant’s car, climbed into Curry’s car, spoke with Curry, and
returned to the informant’s car, where she gave the informant 31
grams of crack cocaine. Afterwards, Wilhite met with the
informant and took possession of the drugs and the recording
device that the informant had worn.

On June 18, the FBI used the same informant to arrange
another controlled buy from Curry through Arrington. This
time, Curry arrived at Arrington’s residence in a burgundy
Dodge Neon, met with Arrington, and drove back to the
apartment on Clay Street. He entered the apartment, remained
inside for approximately two minutes, and then returned to the
car. At that point, FBI agents moved in and arrested him. When
the agents searched the Dodge Neon, they discovered 40 to 44
grams of crack beneath the front passenger seat, where a female
juvenile had been sitting. They also recovered $4,000 from
Curry’s person. After arresting Curry, Wilhite read him his
Miranda rights. Curry waived his right to remain silent, and
indicated that “he was not going to cooperate . . . and . . . he was
just going to have to take his punishment.” Suppression Hr’g
Tr. 62 (Jan. 26, 2004). He also “said that he had been in the
business, he wanted to get out of the business, but as of that
point he had not.” Id.
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In its opposition to Curry’s motion to suppress, the
government also advised the court that a post-arrest search of the
Clay Street apartment had yielded five firearms, ammunition,
cocaine, heroin, and drug paraphernalia, as well as evidence
linking Curry to the apartment. That evidence included various
documents bearing Curry’s name. Telephone records
subpoenaed to support the search warrant for the apartment also
listed Curry as the subscriber to the telephone service in the
apartment. In addition, the government advised the court that it
would introduce evidence that Curry had been involved in
another, 30-gram crack sale to the same informant on May 21,
2003.

During the course of the suppression hearing, the court and
counsel discussed the applicability of the United States
Sentencing Guidelines to Curry’s case. Based on a prior drug
conviction, the government had filed enhancement papers
pursuant to 21 U.S.C. § 851(a), which would subject the
defendant to a mandatory minimum sentence of 240 months if
he were convicted at trial, see 21 U.S.C. § 841(b). The
government had also made a plea offer to Curry, which was put
on the record. The court advised Curry that the sentence under
the plea offer (which included withdrawal of the enhancement
papers) carried only a ten-year mandatory minimum and an
estimated Guidelines range of 121 to 151 months (assuming a
three-level reduction for acceptance of responsibility). The
district court instructed Curry to speak with his attorney and to
consider his alternatives over the evening recess.1

The next day, Curry and the government entered into a
written agreement, under which Curry agreed to plead guilty to

1
At the close of the suppression hearing, the district court
indicated that it was inclined to deny the motion to suppress, but that
it would entertain further submissions from the parties.
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Count One of the indictment. The government, for its part,
agreed to withdraw the enhancement papers and to dismiss all
of the remaining counts. The agreement explained that Curry
would face a minimum sentence of ten years. It also noted that,
if instead he were convicted at trial without a plea, the
enhancement papers “would require [him] to serve a mandatory
term of 20 years’ (240 months’) incarceration.” J.A. 57.

As part of the agreement, Curry signed a “proffer of
evidence,” which read as follows:

Between May 2003 and June 18, 2003, in the District
of Columbia, Gregory Curry, the defendant, did
knowingly and intentionally agree together with
another person to unlawfully, knowingly and
intentionally distribute and possess with intent to
distribute 104.2 grams of cocaine base (crack), 80.7
grams of cocaine hydrochloride, and 0.92 grams of
heroin. During the period of the conspiracy, Defendant
Curry sold and distributed approximately 30 grams of
cocaine base on May 21, 2003, and on June 6, 2003.
Moreover, on June 18, 2003, defendant Curry intended
to sell an additional 30 grams of cocaine base and
possessed additional controlled substances on this date
inside 5909 Clay Street . . . .

J.A. 14. Curry’s signature appears below a paragraph that
states: “I have discussed this proffer fully with my attorney . .
. . I fully understand this proffer and I acknowledge its
truthfulness, agree to it and accept it without reservation.” J.A.
15.

After Curry signed the agreement, the district court
conducted a plea hearing and engaged Curry in a lengthy
colloquy. It informed him of his rights and of the nature of the
 6

charges against him, and established that there was a factual
basis for the plea and that it was knowing and voluntary. During
the colloquy, Curry acknowledged that he was satisfied with his
attorneys’ representation, that they had “thoroughly investigated
this matter and . . . the facts relating to this case,” and that they
had reviewed the plea agreement with him and answered his
questions about it. Plea Hr’g Tr. 6-7 (Jan. 27, 2004).

The court scheduled Curry’s sentencing for April 29, 2004.
On that day, however, Curry told the court that he no longer
wanted to be represented by his current attorneys. Thereafter,
he retained new counsel and filed a motion to withdraw his
guilty plea. In support, he contended that his plea proceeding
had been flawed because it was rushed, and that his attorneys
had been ineffective in advising him to enter into the plea.

The district court denied Curry’s motion on October 20,
2004. See United States v. Curry, 344 F. Supp. 2d 22, 29
(D.D.C. 2004). On April 22, 2005, the court sentenced him to
135 months in prison. Curry now appeals, contending that the
district court abused its discretion by denying his motion to
withdraw his guilty plea.

II

A defendant may withdraw a guilty plea prior to sentencing
if he “can show a fair and just reason for requesting the
withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). Although
“[w]ithdrawal of a guilty plea prior to sentencing is to be
liberally granted,” United States v. Taylor, 139 F.3d 924, 929
(D.C. Cir. 1998), we review a district court’s refusal to permit
withdrawal only for abuse of discretion, United States v.
Hanson, 339 F.3d 983, 988 (D.C. Cir. 2003). In reviewing such
a refusal, we consider three factors: “(1) whether the defendant
has asserted a viable claim of innocence; (2) whether the delay
 7

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. (quoting United States v. McCoy, 215 F.3d 102, 106 (D.C.
Cir. 2000) (quoting Taylor, 139 F.3d at 929)). In this case, the
government concedes “that the withdrawal of [Curry’s] guilty
plea would not have prejudiced [it] at trial.” Appellee’s Br. 18
n.9. This factor, however, “has never been dispositive in our
cases.” Hanson, 339 F.3d at 988. Our review therefore focuses
on the first and third factors.

With regard to the first factor, Curry contends that he “had
a legitimate defense” to the charges against him. Appellant’s
Br. 7. He characterizes that defense as follows: “[T]here were
no controlled buys from him, . . . he was never found in
possession of any drugs, he did not own the car in which it was
alleged drugs were transported, and . . . other individuals had
access to the apartment from which contraband was recovered.”
Id. at 7-8. These assertions do not, however, constitute a “viable
claim of innocence.” Hanson, 339 F.3d at 988 (quoting McCoy,
215 F.3d at 106 (quoting Taylor, 139 F.3d at 929)). Indeed, they
do not constitute a claim of innocence at all. A person can be
found guilty on a theory of conspiracy, aiding and abetting, or
constructive possession without ever having touched the drugs
at issue. See, e.g., United States v. Harris, __ F.3d __, slip op.
at 22-24 (D.C. Cir. June 22, 2007); United States v. Martinez,
476 F.3d 961, 968-70 (D.C. Cir. 2007); United States v. Dykes,
406 F.3d 717, 721 (D.C. Cir. 2005). Curry’s appellate brief does
not include a single sentence declaring that he is actually
innocent or disclaiming his admission of guilt at the plea
proceeding. Although Curry did “assert[] his innocence to the
charges” in his motion to withdraw the plea before the district
court, J.A. 35, that kind of “general denial” is not sufficient to
satisfy the first factor, United States v. Cray, 47 F.3d 1203, 1209
(D.C. Cir. 1995).
 8

What Curry’s argument really amounts to is the claim that,
if he went to trial, a jury might not be persuaded that the
government had met its burden of proving his guilt beyond a
reasonable doubt. We have previously found such a claim
insufficient to satisfy the first factor. See id. (“A defendant
appealing the denial of his motion to withdraw a guilty plea,
unlike a defendant who has not first pled guilty, must do more
than make a general denial in order to put the Government to its
proof; he must affirmatively advance an objectively reasonable
argument that he is innocent, for he has waived his right simply
to try his luck before a jury.” (internal citation omitted)); see
also FED. R. CRIM. P. 32(d) advisory committee’s notes to 1983
amendments (commenting on the predecessor of the current
Rule 11(d), and stating that “[w]hether the movant has asserted
his legal innocence is an important factor to be weighed” in
determining whether his reason for requesting withdrawal of his
plea is “fair and just”).2

It is true that some of our cases have characterized this first
factor as requiring a “legally cognizable defense” rather than as
requiring a viable claim of innocence, see, e.g., United States v.
Shah, 453 F.3d 520, 522 (D.C. Cir. 2006), and that many have
used the terms interchangeably, see, e.g., McCoy, 215 F.3d at
106; Cray, 47 F.3d at 1207, 1209; United States v. Ford, 993
F.2d 249, 251 (D.C. Cir. 1993). But even if putting the
government to its proof constituted a “legally cognizable
defense” within the meaning of those cases, there is no question
that doing so in this case had a very limited chance of success,
as we discuss further below. Under these circumstances, we
“cannot conclude that the district court abused its discretion in

2
In 2002, the provision of the Federal Rules relating to plea
withdrawals was moved from Rule 32 to Rule 11. See FED. R. CRIM.
P. 32 advisory committee’s notes to 2002 amendments.
 9

deciding that [Curry’s proffered] defense added little weight on
the side of permitting withdrawal.” Hanson, 339 F.3d at 988.

The remaining factor is whether Curry’s guilty plea was
tainted in some manner. Curry does not contend that his plea
proceeding violated the requirements of Federal Rule of
Criminal Procedure 11. See Appellant’s Br. 8. And he has
abandoned his earlier argument that the plea was rushed by the
district court. Instead, he rests on the claim that, “because of his
attorney’s ineffective performance, . . . his plea was not
voluntary.” Id.

In Hill v. Lockhart, 474 U.S. 52, 58 (1985), the Supreme
Court held that “challenges to guilty pleas based on ineffective
assistance of counsel” must be evaluated under the general test
for ineffective assistance set forth in Strickland v. Washington,
466 U.S. 668 (1984). Such a claim requires two showings:
“First, the defendant must show that counsel’s performance was
deficient . . . . Second, the defendant must show that the
deficient performance prejudiced the defense.” Strickland, 466
U.S. at 687.

To establish deficient performance, “a defendant must show
that his counsel’s performance fell below ‘an objective standard
of reasonableness’ under prevailing professional norms.”
United States v. Glover, 153 F.3d 749, 758 (D.C. Cir. 1998)
(quoting Strickland, 466 U.S. at 687-88). Curry’s claim of
deficient performance is based solely on his allegation that one
of his attorneys wrongly “told him the case was hopeless.”
Appellant’s Br. 11. Since the district court did not hold an
evidentiary hearing, we do not know whether the attorney
actually told Curry his case was hopeless. But even if he did,
we do not believe that such an assessment fell outside “the range
of competence demanded of attorneys in criminal cases.” Hill,
 10

474 U.S. at 56 (quoting McMann v. Richardson, 397 U.S. 759,
771 (1970)).

Curry insists that his case was not “hopeless,” because he
had “a colorable claim of innocence.” Appellant’s Br. 11. For
Curry, apparently, “[h]ope springs eternal.” ALEXANDER POPE,
ESSAY ON MAN 30 (MacMillan and Co. 1869) (1733). But even
if we were to adopt Curry’s sunny perspective and regard his
attorney’s assessment as overly pessimistic, we could not say
that it was unconstitutionally so. As the district court
emphasized, “[t]he government had persuasive evidence of
defendant’s involvement in at least three drug transactions.”
344 F. Supp. 2d at 27-28. At trial, Curry would have faced: the
testimony of the FBI agents who kept Curry, the informant, and
Arrington under surveillance; in all likelihood, the testimony of
one or both of the latter individuals; audio- and videotape of the
controlled transactions; the cash found on his person and the
drugs found in the car he was driving; documents, telephone
records, and videotape tying him to an apartment containing
more drugs, as well as guns and drug paraphernalia; and his own
inculpatory post-arrest statements.

Under these circumstances, “any competent attorney would
. . . have advised [Curry] that he stood little chance of obtaining
an acquittal at trial.” Hanson, 339 F.3d at 991. We do not think
that the difference between “little chance” and “hopeless” is of
constitutional magnitude. A lawyer is not required to rate a
defendant’s trial prospects with the precision of a Las Vegas
bookmaker, and cannot be regarded as ineffective merely
because a court might marginally disagree with that rating in
hindsight. See Strickland, 466 U.S. at 689 (holding that “[a] fair
assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight,” and that
“a court must indulge a strong presumption that counsel’s
 11

conduct falls within the wide range of reasonable professional
assistance”).

Moreover, the attorney’s evaluation of Curry’s case must be
taken in context. As alleged by Curry, his attorney did not
simply tell him that the case was hopeless, but that “the case was
hopeless and that he should plead guilty.” Appellant’s Br. 5
(emphasis added). An important part of that calculation would
have included a balancing of the likelihood that Curry would
prevail at trial against the benefit to be obtained by accepting the
plea offer. Curry was correctly “informed that if convicted at
trial, he faced a mandatory minimum of 240 months, whereas a
plea would involve a ten-year mandatory minimum and an
estimated Guideline range of 121 to 151” months. 344 F. Supp.
2d at 24. We agree with the district court that, based on the
evidence against Curry, “which was known to counsel and to the
defendant prior to entering a guilty plea, it was prudent, and
certainly not deficient, for counsel to advise Curry to plead
guilty and to thereby avoid a mandatory minimum sentence of
240 months, as opposed to a sentence in the 121 to 151 month
range.” Id. at 28.

Because Curry has failed to satisfy the first prong of the
Strickland test, we need not dwell on the second. We do note,
however, that even if counsel’s assessment were deficient, it is
doubtful that the deficiency prejudiced Curry. “[I]n order to
satisfy the ‘prejudice’ requirement, the defendant must show
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.” Hill, 474 U.S. at 59. Moreover,
“where the alleged error of counsel is a failure to advise the
defendant of a potential affirmative defense to the crime
charged, the resolution of the ‘prejudice’ inquiry will depend
largely on whether the affirmative defense likely would have
succeeded at trial.” Id. These “predictions of the outcome at a
 12

possible trial, where necessary, should be made objectively,
without regard for the ‘idiosyncrasies of the particular
decisionmaker.’” Id. at 59-60 (quoting Strickland, 466 U.S. at
695); see Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000)
(describing Hill as holding that “the prejudice inquiry depends
largely on whether th[e] affirmative defense might have
succeeded, leading a rational defendant to insist on going to
trial” (emphasis added)).

As we have discussed, even if Curry’s case were not
hopeless, any competent attorney would have advised him that
his chance of success was slim. Any competent attorney would
also have advised him that the deal offered by the government
was a good one, particularly given the weakness of the defense
case. We think it doubtful that, had a rational defendant been so
advised, he would have chosen to go to trial. See In re Sealed
Case, __ F.3d __, slip op. at 15-16 (D.C. Cir. June 1, 2007);
Hanson, 339 F.3d at 991-92.

Finally, Curry contends that the district court erred in
refusing to hold an evidentiary hearing on the request to
withdraw his plea. Although a district court should
“[o]rdinarily” conduct an evidentiary hearing “when a defendant
seeks to withdraw a guilty plea on the basis of ineffective
assistance of trial counsel,” a court does not abuse its discretion
in denying such a request where there are no material factual
issues in dispute. Taylor, 139 F.3d at 932; see United States v.
Jones, 381 F.3d 615, 618 (7th Cir. 2004); see also United States
v. Patterson, 652 F.2d 1046, 1047-48 (D.C. Cir. 1981). Curry
made (and makes) no controverted assertion that his attorneys
failed to pursue a line of investigation, overlooked a potential
defense, or gave incorrect advice regarding his sentencing
exposure. His only allegation is that one attorney told him that
his case was hopeless. We have concluded that, even assuming
this allegation is accurate, it did not render counsel’s
 13

representation ineffective. Thus, there was no need for the court
to conduct an evidentiary hearing.

III

The district court did not abuse its discretion by denying
Curry’s request to withdraw his guilty plea or to hold an
evidentiary hearing. The judgment of the district court is
therefore

Affirmed.