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 ELECTRONIC 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 

25th 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 District of New York, New York, NY. 

 Appeal from the United States District Court for the Southern District 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 January 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, procedural history, and specification 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 must 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 prejudice 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 accepted a plea offer “in combination with” “some 

objective evidence,” such as “a significant 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 affirming this Court’s judgment of 

conviction and sentence, there was “sufficient evidence adduced at 

trial to support Reese’s conviction 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). Reese moved for reconsideration, arguing that the 

district court had overlooked his argument regarding the plea offers. The district court denied 

reconsideration, finding that Reese had not demonstrated 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-serving 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 disparity 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 disparity between the sentencing exposure in the plea offer and the 

actual sentence imposed at trial would constitute objective evidence.”). Here, Reese was 
3

sentenced to 108 months in prison, but the Government offered him a stipulated Guidelines 

range of 57-to-71 months. Even assuming a sentence 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 trial testimony he accepted some responsibility for 

participating in the crimes, although he downplayed his involvement. See Pham, 317 F.3d at 183 

(stating that a petitioner’s admission that he participated in the conspiracy, but downplaying his 

involvement, did not negate his habeas claim 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 court to develop a more robust record, and to 

reconsider its decision. See id. at 184-85. In particular, the district court reached its decision here 

without seeking an affidavit from trial counsel, and thus lacked sufficient information to 

determine whether Reese’s representations are credible. 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 and REMAND for further 

proceedings in accordance with this order. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk