United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2021 Decided December 28, 2021 

No. 20-3013 

UNITED STATES OF AMERICA, 

APPELLEE

v. 

XAVIER JAMAAL ORANGE, 

APPELLANT

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:19-cr-00119-1) 

Lisa B. Wright, Assistant Federal Public Defender, argued 

the cause for appellant. With her on the briefs was A.J. Kramer, 

Federal Public Defender. Tony Axam, Jr., Assistant Federal 

Public Defender, entered an appearance. 

Bryan H. Han, Assistant U.S. Attorney, argued the cause 

for appellee. With him on the brief were Chrisellen R. Kolb and 

Suzanne Grealy Curt, Assistant U.S. Attorneys. 

Before: KATSAS and RAO, Circuit Judges, and 

SILBERMAN, Senior Circuit Judge. 

Opinion for the Court filed by Circuit Judge RAO. 
2 

RAO, Circuit Judge: Xavier Orange pleaded guilty to two 

violations of 18 U.S.C. § 922(g)(1), which prohibits certain 

felons from possessing firearms, and was sentenced to 57 

months of imprisonment. Orange argues on appeal that his 

attorney was ineffective at his sentencing hearing, depriving 

him of his Sixth Amendment right to counsel under Strickland 

v. Washington, 466 U.S. 668 (1984). The record from the 

hearing, however, makes clear that irrespective of any alleged 

deficiencies in representation, the district court would have 

imposed the same sentence. Because Orange has not 

demonstrated prejudice, his ineffective assistance of counsel 

claim fails. 

I. 

Early one morning, Orange was riding in the back seat of 

a car in Northeast Washington, D.C. The car was stopped by 

the United States Park Police, who noticed Orange had an open 

bottle of liquor in his lap. After arresting Orange, the Park 

Police discovered a loaded Sig Sauer pistol in his pocket. 

Because Orange had previously been convicted in the District 

of Columbia of attempted assault with a dangerous weapon and 

of attempted robbery, it was unlawful for him to possess a 

firearm. 18 U.S.C. § 922(g)(1); see D.C.CODE §§ 22-1803, 23-

1331(4) (2001). A grand jury charged him with violating 

Section 922(g)(1). 

One week after his arrest, Park Police officers went to an 

apartment they believed was Orange’s. They found a loaded 

.45 caliber Glock pistol in the kitchen. In the bedroom, they 

discovered a .45 caliber extended magazine, alongside four 

other handgun magazines, over a hundred rounds of 

ammunition, and drug paraphernalia. Next to the magazines 

and ammunition, they also found court documents in Orange’s 

name and mail addressed to him. There was no indication that 
3 

anyone else lived in the apartment. After forensic testing 

identified Orange’s DNA on the Glock, he was charged with a 

second violation of Section 922(g)(1). 

Orange pleaded guilty, admitting possession of both the 

Sig Sauer and Glock pistols. At the time of his guilty plea, the 

government calculated that the appropriate sentence under the 

Sentencing Guidelines was 21 to 27 months of imprisonment. 

In exchange for Orange’s guilty plea, the prosecution agreed to 

request the shortest sentence within that range and to request 

that he be permitted to serve his sentences concurrently. 

Orange acknowledged, however, that the plea agreement was 

“not binding on the Probation Office or the Court” and that the 

probation officer was free to request, and the court was free to 

assess, a harsher sentence. Orange waived the right to appeal 

his sentence but retained the right to bring ineffective 

assistance of counsel claims. 

Unfortunately for Orange, his probation officer proposed 

a higher Guidelines range than the government had calculated. 

First, according to the presentence report (“PSR”), the Sig 

Sauer discovered in Orange’s pocket at the traffic stop had an 

obliterated serial number, resulting in a four level 

enhancement. Second, the PSR noted that Orange’s .45 caliber 

Glock was “capable of accepting [the] large capacity 

magazine” discovered in the bedroom, which increased his 

base offense level. These adjustments resulted in a 

recommended sentence of 57 to 71 months. Orange objected, 

insisting he had never admitted that the Sig Sauer’s serial 

number was obliterated or that he possessed a large capacity 

magazine that his Glock could accept. The government agreed 

with Orange that the proper Guidelines recommendation 

remained 21 to 27 months. 
4 

At a pre-sentencing conference, the district court sua 

sponte flagged another issue. Relying on United States v. 

Brown, 892 F.3d 385 (D.C. Cir. 2018) (per curiam), the court 

asked the parties to determine whether Orange’s prior 

conviction for attempted assault with a dangerous weapon was 

a “crime of violence” under the Guidelines. 

At Orange’s sentencing, the court quickly disposed of two 

of the three outstanding issues. First, after reviewing the 

evidence, his attorney and the prosecution agreed the serial 

number on his Sig Sauer was not obliterated. Second, Orange’s 

attorney conceded that attempted assault with a dangerous 

weapon was a crime of violence under the Guidelines. 

The parties disputed the PSR’s extended magazine 

recommendation. Orange insisted that the apartment the 

officers searched was not his; the .45 caliber extended 

magazine discovered in the bedroom was not his; and, even if 

it were, it had not been in “close proximity” to the .45 caliber 

Glock found in the kitchen, as required by the Guidelines. 

Based on the testimony of the officer who searched the 

apartment, the district court determined that “[b]y far, the most 

plausible conclusion” was that Orange owned the extended .45 

caliber magazine. After all, it was located in a small apartment, 

next to his mail and court documents, and one room away from 

a .45 caliber handgun with his DNA on it. The court further 

found that Orange’s extended magazine was in “close 

proximity” to his Glock and increased his offense level 

accordingly. 

These findings placed Orange’s recommended sentence at 

46 to 57 months of imprisonment. After considering the 

sentencing factors of 18 U.S.C. § 3553(a)—including the 

seriousness of Orange’s offense, his prior gun-related 

convictions, and the need to protect the public—the court 
5 

handed down two 57 month sentences, to be served 

concurrently, followed by three years of supervised release. 

The court stipulated that “if I’m wrong about the guideline 

range, I would still vary upwards to give you this sentence.” 

Orange timely appealed, claiming his attorney was ineffective 

at sentencing. 

II. 

Orange argues his attorney made two errors at sentencing. 

First, he contends his attorney should have realized that, as a 

matter of law, a conviction in the District of Columbia for 

attempted assault with a dangerous weapon is not a “crime of 

violence” under the Guidelines. Second, he maintains that the 

testifying officer never suggested the .45 caliber Glock was 

“capable of accepting” the extended .45 caliber magazine, and 

that no other evidence adduced at sentencing suggested the 

magazine fit the gun. An effective attorney, Orange argues, 

would not have conceded that attempted assault with a 

dangerous weapon was a crime of violence and would have 

recognized that the extended magazine finding lacked 

evidentiary support. 

To succeed on his ineffective assistance claim, Orange 

must demonstrate (1) that his attorney’s conduct at sentencing 

“fell below an objective standard of reasonableness,” and (2) 

“a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 688, 694. Although we often remand 

“colorable” ineffective assistance claims raised on direct 

appeal “for further factual development,” a remand is 

unnecessary if “the record clearly shows that the defendant was 

not prejudiced.” United States v. Sitzmann, 893 F.3d 811, 831–

32 (D.C. Cir. 2018) (per curiam) (cleaned up); see also United 

States v. Marshall, 946 F.3d 591, 596 (D.C. Cir. 2020). In this 
6 

case, we need not consider the merits of Orange’s deficient 

performance allegations, because the record clearly shows that 

he did not suffer prejudice, i.e., a “reasonable probability ... 

that [his] prison term would not have been as long” if his 

attorney had represented him effectively. United States v. 

Murray, 897 F.3d 298, 312 (D.C. Cir. 2018) (cleaned up); see 

also United States v. Eli, 379 F.3d 1016, 1019 (D.C. Cir. 2004). 

Orange contends he was prejudiced because, if his 

attorney had been competent, the court would have arrived at a 

Guidelines range of 21 to 27 months; instead, it found that the 

proper range was 46 to 57 months. The difference between the 

two, he argues, suggests a reasonable probability of a more 

lenient sentence. 

The Supreme Court has explained that in “most cases” 

when a defendant shows that, but for his attorney’s deficient 

performance, the court would have selected a lower Guidelines 

range, he will have “demonstrated [the] reasonable probability 

of a different outcome” that Strickland requires. MolinaMartinez v. United States, 578 U.S. 189, 200 (2016). Although 

the Guidelines are not binding, they serve as the “initial 

benchmark” and “framework for sentencing.” Id. at 198. 

Absent some other indication from the record, a reviewing 

court may therefore fairly assume that an errant Guidelines 

calculation worked to the defendant’s prejudice. Yet because 

sentencing calculations must turn on individualized 

considerations, in some cases the district court may explicitly 

rely on reasons not directly connected to the Guidelines range. 

Where the “record in a case show[s] ... that the district court 

thought the sentence it chose was appropriate irrespective of 

the Guidelines range,” and where it gave a “detailed 

explanation of the reasons the selected sentence is 

appropriate,” such explanations may undercut any inference of 

prejudice from an incorrect Guidelines calculation. Id. at 200. 
7 

At Orange’s sentencing, the court calculated a Guidelines 

range of 46 to 57 months and imposed a sentence at the top of 

that range. The court stated it would have reached the same 

result irrespective of the Guidelines: 

I’m going to sentence you to within what I 

believe is a properly calculated guideline range; 

however, I want to make clear that if I’m wrong 

about the guideline range, I would still vary 

upwards to give you this sentence in light of all 

of the foregoing factors, but particularly given 

that this is now your third weapons related 

conviction and that you possess[ed] such an 

array of weapons and ammunition in this case. 

I believe your past conduct, in combination 

[with] the instant offense, necessitates [a] 

significant sentence to protect the community 

from your future crimes. Anything less than 

[the] sentence I’m imposing would not be 

sufficient to comply with the purposes of 

sentencing. 

The district court also provided “a detailed explanation of 

the reasons the selected sentence [was] appropriate.” MolinaMartinez, 578 U.S. at 200. It explained that Orange was a “a 

very dangerous person”—“a gunslinger” who was “heavily 

armed,” with an “arsenal” of weapons in his home. This was 

Orange’s third gun-related offense. He had previously pointed 

a loaded handgun at an unsuspecting Lyft driver, threatening to 

shoot him, and attempted to rob a pedestrian with a BB gun 

disguised to resemble a pistol. His lenient punishments for 

those earlier offenses had not deterred his “apparent habit of 

threatening others with firearms.” That Orange twice violated 

Section 922(g)(1) while on supervised release indicated a 

“callousness to the rule of law.” The court’s reasons make 
8 

“clear” that it “based the sentence” at least in part “on factors 

independent of the Guidelines.” Id. 

Orange protests that the district court’s analysis was not 

wholly independent of the Guidelines, since it ultimately 

selected a sentence within the calculated range. MolinaMartinez, however, does not require the government to show 

that the court’s decision was completely independent of the 

Guidelines—only that the court explained why the sentence 

was “appropriate irrespective of the Guidelines range.” Id.

When the court offers such an explanation, as it did in this case, 

an incorrect Guidelines range will not suffice to demonstrate 

prejudice. Aside from the court’s alleged Guidelines error, 

Orange offers no reason to suppose that he would have 

received a lesser sentence had his attorney raised the legal and 

evidentiary objections described above. 

Orange also attempts to rely on United States v. Parks, 995 

F.3d 241 (D.C. Cir. 2021). In that case, he argues, we found 

prejudice even though the district court implied it chose the 

defendant’s sentence without relying on the Guidelines. Parks, 

however, is easily distinguished because the record there was 

“‘silent’ as to what the District Court would have done had it 

‘considered the correct Guidelines range.’” Id. at 247 (quoting 

Molina-Martinez, 578 U.S. at 201). In this case, the record is 

not silent, and we can readily conclude that the court would 

have imposed the same sentence irrespective of the Guidelines. 

Finally, Orange argues the district court’s sentence would 

not have survived direct appellate review, because the court 

failed to justify the degree of variance between the 57 month 

sentence imposed and the 21 to 27 month recommended 

sentence which, if his attorney had been competent, the court 

would have had to consider. Orange, however, waived the right 

to appeal his sentence directly, so whether the court’s sentence 
9 

would pass muster on direct review is not the relevant question. 

In Parks, the absence of any reason for an upward departure 

from the correct Guidelines range “further supported” a finding 

of prejudice. Id. at 248. But we did not hold in Parks—and 

never have held—that the ordinary standard of review for an 

upward sentencing variance applies in ineffective assistance 

cases. If a district court explains that its sentence does not 

depend on the Guidelines and gives “reasons the selected 

sentence is appropriate,” Molina-Martinez, 578 U.S. at 200, we 

do not further inquire whether, on a hypothetical direct appeal, 

those reasons would have supported an upward variance. 

Under Strickland, the relevant question is whether Orange 

has shown a reasonable probability that he would have received 

a shorter sentence had his attorney been effective. We fail to 

see such a reasonable probability in this case. 

* * * 

 For the foregoing reasons, we affirm the judgment of the 

district court. 

So ordered.