Appeal from the United States District Court for the District of Kansas (D.C. Nos. 5:06-CV-03154-DVB and 2:91-CR-20022-DVB-1).
The opinion of the court was delivered by: Seymour, Circuit Judge.
Before TACHA, SEYMOUR and LUCERO, Circuit Judges.
Petitioner Patrick E. Washington requests reversal of the district court's denial of his 28 U.S.C. § 2255 motion to vacate, correct, or set aside his sentence, claiming the district court erred in not holding his counsel's performance constitutionally deficient. We conclude that counsel's failure to understand the basic mechanics of the sentencing guidelines and, in particular, his failure to advise Mr. Washington regarding the impact of relevant conduct on his potential sentence prior to meeting with the probation officer, amounted to constitutionally deficient performance under Strickland v. Washington, 466 U.S. 668 (1984). We also conclude that Mr. Washington was prejudiced as a result of the above failures because the facts he conceded at his presentence interview disqualified him from obtaining a two-level reduction pursuant to the 2007 Crack Cocaine Amendments, U.S.S.G. § 2D1.1(c), App. C, Amend. 706, 711 (2007) (Amendment 706). We therefore reverse.
After almost twenty years, Mr. Washington's claims of ineffective assistance of counsel are finally before us. The story begins in February 1991, when Mr. Washington was indicted for three counts of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and one count of using or carrying a firearm in connection with a crime, in violation of 18 U.S.C. § 924(c). To represent his defense, Mr. Washington retained Gary W. Long, II, an attorney with some state court trial experience but no experience in federal court. Following a jury trial in May 1991, Mr. Washington was convicted on all three counts of possessing and distributing a total of 61.98 grams of cocaine base. He was acquitted of the charge of carrying a firearm.
Prior to his sentencing hearing, Mr. Washington attended a presentence interview with the probation officer assigned to his case. Mr. Long did not accompany him to this meeting, nor did he inform Mr. Washington about the purpose or legal significance of the interview. At the interview, Mr. Washington admitted to a drug distribution sales pattern of between 0.5 - 1.0kg of cocaine base every three weeks for three months in 1990. The probation officer determined that this admission resulted in an additional 2.5 kilograms of cocaine base attributable to Mr. Washington. The presentence report also contained information from a confidential government informant, who stated that Mr. Washington possessed and distributed approximately four kilograms of cocaine base between January and February 1991. Adding these amounts to the 61.98 grams of cocaine stemming from Mr. Washington's convictions in the instant case, the probation officer determined that Mr. Washington had distributed a total of 6.5 kilograms of cocaine base relevant to his sentence and thus recommended an applicable base offense level of 40.*fn1
At sentencing, the district court considered as relevant conduct both the confidential informant's statements and the probation office's report regarding Mr. Washington's drug distribution activities between 1990-91, agreeing that the applicable base offense level was 40. In addition, the court imposed two two-level enhancements: one for obstruction of justice for Mr. Washington's attempt to kill the informant before the trial, and a second one for his role in the offense as a leader or organizer of a group with more than five participants. The resulting offense level of 44 was the highest possible under the 1991 mandatory sentencing guidelines. Given Mr. Washington's criminal history category of II, his resulting sentencing range was higher than the statutory maximum of 40 years for each of the counts of his conviction. The district court sentenced Mr. Washington to three forty-year terms of imprisonment to be served consecutively, for a total of 120 years.
Mr. Long failed to properly prosecute the appeal and was disbarred during its course from practicing before this court.*fn2 The Federal Public Defender was appointed to represent Mr. Washington on appeal. We affirmed Mr. Washington's conviction and sentence. United States v. Washington, 11 F.3d 1510 (10th Cir. 1993).
A. Mr. Washington's Post-conviction Motions
In 1994, Mr. Washington filed his first post-conviction motion, seeking information under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. In 1996, the district court recharacterized a part of that motion as a habeas petition under 18 U.S.C. § 2255, and then denied it. Mr. Washington did not appeal. In 1997, Mr. Washington filed a § 2255 motion which the district court transferred to this court as a request for authorization to file a second or successive § 2255 motion. This court denied authorization.
In 1999, Mr. Washington filed a Rule 60(b)(6) motion for relief from the district court's judgment that recharacterized his FOIA motion. The district court denied the motion. We vacated the district court's decision for lack of jurisdiction to address what we considered to be another second and successive motion, and we denied authorization to file the motion.
In 2002, Mr. Washington filed a motion to reduce his sentence based on the sentencing commission's 1994 amendment to the sentencing guidelines, U.S.S.G. § 2D1.1(c)(1), which reduced the highest potential base offense level for drug offenses from 42 to 38. The district court granted the motion and reduced Mr. Washington's base offense level to 38. As a result, after adding the four-level enhancements, Mr. Washington's guideline range became 360 months to life for each of the three counts of conviction. The district court reduced Mr. Washington's sentence to a total of thirty years on each count, to be served concurrently rather than consecutively.
In 2003, in Castro v. United States, the Supreme Court held:
[W]hen a court recharacterizes a pro se litigant's motion as a first § 2255 motion . . . the district court must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on "second or successive" motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has. 540 U.S. 375, 383 (2003). Relying on Castro, Mr. Washington renewed his Rule 60(b)(5) motion seeking relief from the district court's judgment that recharacterized his FOIA motion. The district court denied the motion for failure to meet the Rule 60(b)(5) requirements. We reversed and remanded, authorizing Mr. Washington to file an initial § 2255 motion. In doing so, we held that "[b]y sua sponte treating his motion as one under § 2255, the [district] court essentially used up [Mr. Washington's] one shot at attacking his convictions and sentence." Washington v. United States, No. 05-335 (10th Cir. 2006) (unpublished) (citation and quotation marks omitted) (alterations in original).
B. Mr. Washington's Claims of Ineffective Assistance of Counsel
In his most recent pro se § 2255 motion filed after our decision permitting him to start anew, Mr. Washington included five grounds to support his contention that his sentence was improper. He claimed, inter alia, that the government had offered him a plea bargain, that he was informed about the offer, and that Mr. Long was deficient in advising Mr. Washington to go to trial in the face of a pending offer of a ten-year sentence. Aple. Supp. App. at 31, 36, District Court Order, Nov. 5, 2008, at 14, 19 (hereinafter "Order"). In June 2008, the district court, having appointed J. Steven Schweiker to represent Mr. Washington, held an evidentiary hearing regarding the § 2255 motion. During this hearing, Mr. Schweiker, for the first time, argued that "it was ineffective assistance of counsel for Mr. Washington's attorney to not accompany him to the pre-sentence meeting with the probation officer or to at least advise him of the nature and possible consequences of the meeting, which resulted in Mr. Washington revealing to the probation officer incriminating information that increased his drug quantity by 2.5 kilograms." Aple. Supp. App. at 24. After the government objected to the claim's untimeliness, the district court took the matter under advisement. The court subsequently issued an order allowing Mr. Washington's new ineffective assistance of counsel claim to go forward.
Before ruling on Mr. Washington's § 2255 motion, the district court held a second evidentiary hearing regarding the alleged plea negotiations between Mr. Long and the prosecutor, Julie Robinson (now the Honorable Julie Robinson), and Mr. Long's conduct with respect to the presentence interview. Thereafter, in its November 2008 order, the district court determined that contrary to Mr. Washington's contentions: (1) the government did not offer Mr. Washington a plea bargain requiring it to recommend a ten-year sentence; (2) before Mr. Long was appointed, and during Ms. Robinson's discussions with Mr. Washington, he indicated that he was not interested in cooperating with the government; (3) after Mr. Long was appointed, Ms. Robinson's conversations with Mr. Long regarding a possible plea agreement were general and preliminary in nature and never amounted to a specific and firm offer or agreement; and (4) Mr. Long proceeded to trial because Mr. Washington wanted to go to trial.*fn3
As to Mr. Washington's ineffective assistance of counsel argument based on counsel's failure to be present at or to advise Mr. Washington regarding the ramifications of the presentence interview, the district court stated that it was inclined to afford Mr. Washington relief but concluded it was constrained by the holding in United States v. Gordon, 4 F.3d 1567, 1571-72 (10th Cir. 1993) ("Defendant had no Sixth Amendment right to the presence or advice of counsel during the presentence interview"). Mr. Washington filed a notice of appeal and an application for a COA.
When we initially granted Mr. Washington a COA, we limited its scope to "[w]hether the magnitude of trial counsel's error regarding the maximum sentence the defendant would face if he went to trial amounts to ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984), in light of this circuit's precedent in United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993)."
Apr. 6, 2009 COA. After hearing oral arguments, we expanded the scope of the COA by "granting Mr. Washington's initial request to proceed in this appeal on the second question presented in his brief: whether his counsel's failure to understand the importance of relevant conduct to his potential sentence, in particular his failure to advise Mr. Washington regarding how to handle the presentence investigation meeting between the probation officer and Mr. Washington, amounted to constitutionally deficient performance under Strickland v. Washington, 466 U.S. 668." Apr. 8, 2010 COA. We also instructed the parties "to address whether Mr. Washington has established there was a reasonable probability that but for counsel's deficient performance he would have likely received a lower sentence. See Glover v. United States, 531 U.S. 198, 200 (2001) ('[I]f an increased prison term did flow ...