16-516
Reese v. United States of America

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRON IC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
25 th day of April, two thousand seventeen.

Present: ROSEMARY S. POOLER, RICHARD C. WESLEY, SUSAN L. CARNEY, Circuit Judges

.

_____________________________________________________

CHRISTOPHER E. REESE,

Petitioner-Appellant

,

v. 16-516

UNITED STATES OF AMERICA,

Respondent-Appellee

.

_____________________________________________________
Appearing for Appellant: Robert A. Culp, Garrison, NY.

Appearing for Appellee: Micah W.J. Smith, Assistant United States Attorney (Margaret Garnett, on the brief ), for Joon H. Kim, Acting United States Attorney for the Southern Distri ct of New Yor k, New York, NY.

Appeal from the United States District C ourt for the Southern Di strict of New York (Marrero, J. ).2 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is VACATED and
REMANDED

.

Christopher E. Reese appeals from the Ja nuary 29, 2016 order of the United States
District Court for the Southern District of New York (Marrero, J .) denying his petition to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. We assume the parties’ familiarity with the underlying facts, pr ocedural history, and specifica tion of issues for review.

To establish a case of ineffective assistance of counsel in accordance with Strickland v. Washington , 466 U.S. 668 (1984), “the petitioner mu st establish that (1) his counsel’s performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for the deficiency, the outcome of the proceeding would have been
different.” Flores v. Demskie , 215 F.3d 293, 300 (2d Cir. 2000) (internal quotation marks and citations omitted). With respect to the prejudice prong, “a defendant suffers prej udice if there is a reasonable probability that his reliance on counsel’s ineffective assistance affected the outcome of the proceedings.” Pham v. United States , 317 F.3d 178, 182 (2d Cir. 2010). A
defendant’s statements that he would have acce pted a plea offer “in combination with” “some objective evidence,” such as “a si gnificant sentencing disparity,” is sufficient to support a prejudice finding. Id.

Here, the district court did not address Strickland ’s performance prong. Instead, the district court addressed only the prejudice prong, and determined that:

the trial record contains more than ample evidence to support a verdict of guilty beyond a reasonable doubt. As the Second Circuit
stated in their decision affirm ing this Court’s judgment of conviction and sentence, there was “sufficient evidence adduced at trial to support Reese’s convicti on for conspiracy to commit wire fraud.” The overwhelming evidence at trial included not only that which was put forward by the Government but also Reese’s own testimony that he was engaged in a conspiracy to commit wire
fraud.

App’x at 139-40 (internal citation omitted). Rees e moved for reconsideration, arguing that the
district court had overlooked his argument regarding the plea offe rs. The district court denied reconsideration, finding that Reese had not demons trated that there was a reasonable probability that he would have pled guilty if counsel had better explained the plea offer.

The district court correctly observed that Reese needed to present some objective
evidence other than his own self-servi ng testimony to establish prejudice. Pham , 317 F.3d at 183. However, we have found error where, as here, a district court summarily determines the absence of prejudice without considering a significant sentencing disparit y between a plea offer and a
sentence after conviction. Pham , 317 F.3d at 183; Puglisi v. United States , 586 F.3d 209, 217 (2d Cir. 2009) (“[A] significant dispar ity between the sentencing exposur e in the plea offer and the actual sentence imposed at trial would consti tute objective evidence.”). Here, Reese was3 sentenced to 108 months in prison, but the Gove rnment offered him a stipulated Guidelines range of 57-to-71 months. Even assuming a sent ence at the top end of the range, that is a difference of more than three years. Further, there was some additional objective evidence that Reese would have accepted the offer: in his tr ial testimony he accepted some responsibility for participating in the crimes, alt hough he downplayed his involvement. See Pham , 317 F.3d at 183 (stating that a petitioner’s admissi on that he participated in the conspiracy, but downplaying his involvement, did not negate his habeas clai m that he would have pled guilty).

Reese seeks a remand for resentencing, which we think premature. Reese makes several as-yet unchallenged claims regarding his counsel ’s presentation of the offer: namely, that counsel failed to accurately present the terms of the offer, greatly underestimated Reese’s sentencing exposure, and did not offer advice as to whether Reese should accept the offer. These
claims are not inconsistent with the record as it now stands and are therefore not insufficient on
their face. We thus remand for the district c ourt to develop a more robust record, and to
reconsider its decision. See id. at 184-85. In particular, the distri ct court reached its decision here without seeking an affidavit from trial counsel , and thus lacked sufficient information to determine whether Reese’s representations are cr edible. The district court need not hold an evidentiary hearing, although it may if it so chooses. See id.

Accordingly, we VACATE the judgment of the district court a nd REMAND for further proceedings in accordance with this order.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk