2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-24-2003

USA v. Smack

Precedential or Non-Precedential: Precedential

Docket No. 02-2620

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PRECEDENTIAL

Filed October 24, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-2620

UNITED STATES OF AMERICA

v.

DION A. SMACK,

a/k/a DEE

DION A. SMACK,

Appellant

On Appeal From the United States District Court

For the Eastern District of Pennsylvania

(D.C. No. 99-cr-00089-2)

District Judge: Honorable Marvin Katz

Argued September 9, 2003

Before: SCIRICA, Chief Judge, BECKER and

GREENBERG, Circuit Judges.

(Filed October 24, 2003)
MAUREEN KEARNEY ROWLEY,

ESQUIRE

Chief Federal Defender

DAVID L. McCOLGIN, ESQUIRE

Supervising Appellate Attorney

JONATHAN D. LIBBY, ESQUIRE

Research & Writing Specialist

ROBERT EPSTEIN, ESQUIRE

(Argued)

Assistant Federal Defender

Federal Court Division

Defender Association of Philadelphia

Suite 540 West — Curtis Center

Independence Square West

Philadelphia, Pennsylvania 19106

Counsel for Appellant

PATRICK L. MEEHAN

United States Attorney

LAURIE MAGID

Deputy United States Attorney

For Policy and Appeals

ROBERT A. ZAUZMER

Assistant United States Attorney

Senior Appellate Counsel

GREGORY A. PAW, ESQUIRE

(Argued)

Assistant United States Attorney

Eastern District of Pennsylvania

Suite 1250

615 Chestnut Street

Philadelphia, Pennsylvania 19106

Counsel for Appellee

OPINION OF THE COURT

BECKER, Circuit Judge.

This is an appeal by defendant Dion A. Smack from a

judgment in a criminal case. It has a complex, almost

convoluted history, compounded by a poorly drafted and

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confusing application note to the U.S. Sentencing

Guidelines. Although technically before us as an appeal,

this case is at bottom a proceeding under 28 U.S.C. § 2255

because the real issue is whether, as Smack contends,

counsel at his original plea and sentencing was ineffective

in failing to bring to the Court’s attention at sentencing the

terms of Application Note 12 of Sentencing Guideline

2D1.1, which might have given Smack a lower offense level

hence a lighter sentence had he been able to establish

either that (a) he had not agreed to transact in such a large

quantity of cocaine, or (b) he did not intend to provide, or

was not reasonably capable of providing, the funds

necessary to complete the transaction agreed to in a reverse

sting initiated by the Drug Enforcement Administration

with Smack and a confederate, and instead simply

stipulating in the plea agreement to Smack’s involvement

with ten kilograms of cocaine. 

Because of the odd procedural history of the case, the

District Court never effectively conducted a § 2255 hearing.

We have enough of a record to conclude that Smack does

meet the first prong of the test for ineffective assistance of

counsel under Strickland v. Washington, 466 U.S. 668

(1984), because of the efficacy of his contentions as

referenced above. We cannot, however, determine whether

the second Strickland prong is met. This is because no

record was ever developed on the factual questions of

intent, capability, and agreement that might bear on

Smack’s sentence—and hence on whether he was

prejudiced by receiving the sentence he did. We will

therefore remand for further consideration by the District

Court at a § 2255 hearing and for possible resentencing. We

also call upon the U.S. Sentencing Commission to revise

Application Note 12 to clarify the scope of drug transactions

to which the intent and capability defenses apply (and,

indeed, if they are defenses or elements), issues that have

divided the federal appellate courts.

I. Facts and Procedural History

During January of 1999, FBI agents monitored several

conversations between Michael Reis—a witness cooperating

with the FBI—and John Shields. These conversations

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concerned the purchase by Shields and others of varying

quantities of cocaine from Reis. In some of these calls,

Shields discussed his associate, Smack, who would be

helping with the purchase and distribution of the cocaine.

The precise quantity of cocaine involved in the agreement

is difficult to pin down; indeed, it is for this very reason

that we will remand to the District Court to determine in

the first instance just what the parties contemplated. It

might have been as much as five kilograms, plus five more

on credit, as Shields and Reis discussed initially. When

Reis met Shields and Smack to complete the transaction on

January 29 (after at least eight phone conversations

between Reis and Shields), they discussed paying $54,000

for three kilograms, with four more kilograms to be

provided on credit. But Shields had brought only about

$18,000, enough to purchase one kilogram of cocaine.

Shields claimed that he would have the remainder of the

money in a few hours. Whatever the agreement, this was a

reverse sting—“an operation in which a government agent

sells or negotiates to sell a controlled substance to a

defendant,” USSG § 2D1.1, comment. (n.14)—and Shields

and Smack were arrested immediately upon taking delivery

of one kilogram of cocaine.

Shields and Smack were both indicted. Shields pleaded

guilty pursuant to a cooperation plea agreement with the

government, and in his sentencing memorandum argued

that he and Smack had not had the wherewithal to engage

in a ten-kilogram transaction; to the contrary, he submitted

in his sentencing memorandum that they were never

looking for more than one or two kilograms, and that even

the $18,000 they did have had been supplied by a third

party. 

Smack also pleaded guilty. His agreement stipulated that

the base offense level under the U.S. Sentencing Guidelines

(“USSG” or “Guidelines”) for the offense was 32, because he

had attempted to purchase with the intent to distribute ten

kilograms of cocaine. Smack was sentenced in a separate

proceeding from Shields. After receiving the benefit of a

three point reduction for acceptance of responsibility,

Smack was sentenced to 120 months imprisonment, five

years supervised release, and a special assessment of $100.

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Neither at sentencing, nor, it appears, in the process of

negotiating Smack’s plea agreement, did Smack’s counsel

raise the issue of the applicability of Application Note 12 to

USSG § 2D1.1 (“Note 12”) and United States v. Raven, 39

F.3d 428 (3d Cir. 1994). As we discuss in some detail

below, it is Note 12 which controls the quantity used for

Guidelines purposes in prosecutions arising out of stings,

reverse stings, and other situations where the delivered

quantity of controlled substance may differ from the

agreed-upon quantity. In Raven we indicated that (a prior

version of) Note 12 applied to reverse stings, and held that,

when a defendant puts his intent and ability to

consummate a proposed transaction in issue, the

government is required to prove the defendant’s intent and

ability. Smack asserts on appeal that his counsel’s

performance was deficient in failing to press the Note 12

/Raven issue and instead advising him to stipulate to a

quantity (ten kilograms) at the upper bound of what the

parties had considered in early negotiations. 

After sentencing, Smack filed a pro se motion under 28

U.S.C. § 2255 alleging ineffective assistance of counsel.

That motion included the ineffectiveness claim pressed

here, a claim that counsel had failed to file a notice of

appeal as Smack had requested, and other claims of

ineffectiveness. The District Court denied that motion and

denied a certificate of appealability, but this Court granted

a certificate of appealability and remanded to the District

Court for a hearing on whether Smack’s counsel had indeed

failed to file a requested notice of appeal. At that hearing,

Smack was represented by the Federal Defender. The

government reported that efforts to reach Smack’s original

(privately retained) counsel had been unsuccessful. (Indeed,

even as of the date of oral argument in this case, Smack’s

original counsel had not been located.) Accordingly, the

District Court accepted Smack’s uncontroverted version of

events about the failure to file a notice of appeal, and

ordered him resentenced. 

It appears that all involved at the resentencing viewed it

as pro forma, i.e. merely as a vehicle to give Smack the

benefit of an appealable order. But Smack had no claims to

assert on direct appeal. Rather—and we confess that this is

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much clearer in hindsight—the preferable approach would

have been for the parties at the District Court to take up

the remand as a § 2255 proceeding, because Smack’s

claims—most prominently the ineffective assistance of

counsel claim regarding the stipulation and Note 12/Raven

—were cognizable only in a § 2255 proceeding. 

Thus, we ultimately decline to take Smack’s suggestion

that this case is governed by United States v. Cocivera, 104

F.3d 566 (3d Cir. 1996), where we held that, although we

generally decline to consider a claim of ineffective

assistance of counsel in the first instance on direct appeal,

“in some cases, albeit rare, we may have a sufficient record

on appeal to decide the issue and avoid the considerable

effort of requiring the defendant to institute a collateral

proceeding in order to raise the ineffective assistance of

counsel claim.” Id. at 570-71. Cocivera is inapposite

because we do not have a sufficient record to completely

dispose of Smack’s claim. And yet it is appropriate that we

explore those aspects of the § 2255 claim that are

sufficiently developed. 

In the typical case where Cocivera does not apply, this

Court affirms the defendant’s sentence, leaving him to

pursue his ineffective assistance of counsel claim in a

§ 2255 motion. This is not the typical case. First, the

District Court has already denied Smack’s § 2255 motion

raising a similar ineffectiveness claim, apparently rendering

futile any disposition that would require Smack to first

pursue his remedies in the District Court. Yet this Court

did not pass on that disposition in Smack’s original appeal

of his § 2255 motion. Second, the key legal issues have

been well-briefed and well-argued in this appeal, and it

seems grossly inefficient to require the parties to go

through the formalities and delay of instituting another

§ 2255 proceeding and a third appeal, especially in the

absence of Smack’s original counsel. Third, further delay is

likely to deny Smack the practical benefit of any relief he is

owed: His prison term commenced in October 1999, and if

he prevails in this matter, Smack would receive a sentence

of 60 to 63 months, a term that would expire in late 2004.

Smack’s term would expire even sooner if he is credited

with time served prior to sentencing. Accordingly, it is

practical to limit the scope of the remand. 

6
We turn now to our discussion, mindful of the fact that

what is really before us is Smack’s motion under § 2255 to

vacate his sentence and his plea agreement as to the

stipulated offense level and quantity of controlled

substance, and his concomitant request to order him

resentenced.

II. Discussion

We exercise plenary review over the legal component of a

claim of ineffective assistance of counsel. See Parrish v.

Fulcomer, 150 F.3d 326, 328 (3d Cir. 1998). “The

underlying facts are reviewed for clear error, and are

subject to independent judgment ‘on whether the facts thus

found constitute constitutionally ineffective assistance of

counsel.’ ” United States v. Baird, 218 F.3d 221, 225 (3d

Cir. 2000) (quoting Gov’t of the Virgin Islands v.

Weatherwax, 77 F.3d 1425, 1430-31 (3d Cir. 1996)). Here,

however, there are no findings of fact, and so, based on our

own examination of the record, we will decide whether we

can conclude as a matter of law that the record establishes

the ineffectiveness of Smack’s counsel. 

Strickland v. Washington supplies the standard for

addressing a claim of ineffective assistance of counsel: 

First, the defendant must show that counsel’s

performance was deficient. This requires showing that

counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant

by the Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors

were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable. 

466 U.S. at 687. As noted above, we can resolve the first

prong on the record before us, but leave the second for the

District Court on remand. While the Note 12 and

stipulation issues are intertwined, it is convenient to take

up the stipulation issue first. 

A. The Stipulation

To satisfy the first prong of Strickland, “the defendant

must show that counsel’s representation fell below an

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objective standard of reasonableness,” which means

“reasonableness under prevailing professional norms.” Id.

at 688. We are satisfied that Smack’s original counsel fell

below this standard. 

Smack’s plea agreement read, in pertinent part: 

The government and defendant agree and stipulate that

the narcotics offense in Count 1 to which defendant is

pleading guilty carries a base offense level under the

Sentencing Guidelines of 32 pursuant to Section

2D1.1(c)(4) in that the defendant attempted to possess

with the intention of distributing approximately ten

kilograms of cocaine. 

This stipulation is somewhat perplexing in light of the

course of negotiations and the actual delivery described

above, especially the uncontested fact that only one

kilogram of cocaine was actually exchanged at the reverse

sting operation, and the posture assumed by Shields and

apparently now by Smack that they had neither the

intention nor the capacity to do a deal larger than one

kilogram. In this situation, the deficient performance of

counsel is more conventionally assessed by reference to

whether the attorney-client relationship was operating as it

should have—whether the defendant was aware of his

counsel’s stipulation, whether the defendant did or did not

direct counsel to enter the stipulation, and so on. That

inquiry is elusive, for Smack’s original counsel has

vanished and hence can not be examined on this score,

though Smack can. Setting aside what was actually

transacted (or even agreed to), the stipulation assigned a

quantity at the outer limit of what was discussed. In fact,

by simply pleading guilty in open court, Smack could not

have done worse than his plea agreement. 

Of course, a plea agreement that gains nothing for a

defendant is not per se ineffective under Strickland; to hold

otherwise would seriously disrupt the existing plea

negotiation market. What makes the difference in this case

is that there were substantial arguments to be made—

based on the relevant portions of the USSG and on this

Court’s precedent—that Smack could be held to no more

than the one kilogram actually transacted for. Smack’s

8
original counsel was obliged to know the Guidelines and

the relevant Circuit precedent, but he plainly did not. See,

e.g., United States v. Headley, 923 F.2d 1079, 1083-84 (3d

Cir. 1991) (despite limited record on appeal, sentencing

counsel held ineffective for failing to argue for “minor

participant” downward departure). We now turn to focus on

Note 12 and United States v. Raven, as Smack’s original

counsel should have. 

B. Application Note 12 and United States v. Raven

Application Note 12 to USSG § 2D1.1 provides in relevant

part: 

In an offense involving an agreement to sell a

controlled substance, the agreed-upon quantity of the

controlled substance shall be used to determine the

offense level unless the sale is completed and the

amount delivered more accurately reflects the scale of

the offense. For example, a defendant agrees to sell 500

grams of cocaine, the transaction is completed by the

delivery of the controlled substance—actually 480

grams of cocaine, and no further delivery is scheduled.

In this example, the amount delivered more accurately

reflects the scale of the offense. In contrast, in a

reverse sting, the agreed-upon quantity of the

controlled substance would more accurately reflect the

scale of the offense because the amount actually

delivered is controlled by the government, not by the

defendant. If, however, the defendant establishes that

he or she did not intend to provide, or was not

reasonably capable of providing, the agreed-upon

quantity of the controlled substance, the court shall

exclude from the offense level determination the

amount of controlled substance that the defendant

establishes that he or she did not intend to provide or

was not reasonably capable of providing. 

Since this is an offense involving an agreement to sell a

controlled substance, this portion of Note 12 applies. 

Note 12 is opaque and confusing. On the one hand, it

seems to command that the agreed-upon quantity of

controlled substance, regardless of amount delivered, be

used for sentencing in a prosecution arising out of a reverse

9
sting. On the other hand, it seems to immediately qualify

that statement (“If, however . . .”), and provide the

defendant some relief by way of “establish[ing]” lack of

ability or lack of intent.1 But on a second reading, it seems

that the last sentence cannot apply to reverse stings,

because it refers to “the defendant . . . providing . . . the

agreed-upon quantity of the controlled substance,” and

surely the “controlled substance” is cocaine, not dollars. It

was on this seemingly compelling logic that the Court of

Appeals for the Second Circuit held that, by its plain

meaning, the last sentence of Note 12 does not apply to

reverse stings. See United States v. Gomez, 103 F.3d 249,

252-53 (2d Cir. 1997). 

The Second Circuit’s view is not universal. In fact, there

seems to be a circuit split on this question. The Courts of

Appeals for the First and Tenth Circuits do appear to follow

the Second Circuit. See United States v. Perez de Dios, 237

F.3d 1192 (10th Cir. 2001); United States v. Brassard, 212

F.3d 54 (1st Cir. 2000). But the Courts of Appeals for the

Seventh and Ninth Circuits seem to apply the final

sentence of the new Note 12 to reverse stings. See United

States v. Minore, 40 Fed. Appx. 536 (9th Cir. 2002) (mem.

op.); United States v. Estrada, 256 F.3d 466 (7th Cir. 2001).

The Court of Appeals for the Eighth Circuit has declined to

reach this question. See United States v. Williams, 109 F.3d

502 (8th Cir. 1997). The other Courts of Appeals do not

appear to have weighed in. 

We might try to make sense of Note 12 by turning our

sights beyond buyers in reverse stings to look at buyers in

general. As to buyers in general, Note 12 seems to be silent

—the last sentence speaks only to sellers, as noted, and

nothing in the note speaks to buyers. Traditional principles

1. Yet another question is whether this relief is by way of an affirmative

defense (i.e., the defendant would bear the burden of production and the

burden of proof), or by way of giving the defendant the option of putting

ability or intent in issue and holding the government to its proof (i.e., the

defendant would bear the burden of production, but the government the

burden of proof). This was addressed in United States v. Raven, 39 F.3d

428 (3d Cir. 1994), which interpreted a prior version of Note 12. We take

up Raven and that prior version of Note 12 after discussing the newer

version of Note 12 in effect when Smack was sentenced. 

10
of criminal law would suggest, though, that buyers should

also have the benefit of the mens rea and impossibility

defenses in the last sentence, mutatis mutandis. But if this

were so, then we would be left with the peculiar result that

those defenses would be available to all traffickers in

controlled substances except buyers in reverse stings. Cf.

United States v. Raven, 39 F.3d 428, 436 n.11 (3d Cir.

1994) (“[I]t seems to us fundamentally unfair that only in

cases involving unconsummated drug transactions by

sellers would the government have to demonstrate that the

defendant intended and was able to complete the negotiated

transaction.”). While not irrational, the schema of Note 12

seems a bit warped—and certainly open for counsel’s

argument that Smack’s situation merited special sentencing

consideration. 

Counsel could also have made the obvious argument

based on our interpretation in Raven of an earlier version

of Note 12.2 Raven held that once a defendant puts his

intent and capability in issue, the government must come

forward with proof. And although Raven was a drug courier

2. The version of Note 12 in effect at Raven’s sentencing read in pertinent

part: 

In an offense involving negotiation to traffic in a controlled

substance, the weight under negotiation in an uncompleted

distribution is used to calculate that amount. However, where the

court finds that the defendant did not intend to produce and was

not reasonably capable of producing the negotiated amount, the

court shall exclude from the guideline calculation the amount that

it finds the defendant did not intend to produce and was not

reasonably capable of producing. 

Raven, 39 F.3d at 432. 

Certainly, there are differences between this version of Note 12 and the

version of Note 12 under which Smack was sentenced. First, the old Note

12 does not advert to reverse stings, while the new Note 12 has a specific

provision addressing them. Second, the old Note 12 refers to the

“negotiated amount”—which could refer to money—while the new Note

12 refers to “amount of controlled substance,” thus excluding buyers.

Third, the defenses in the old Note 12 are phrased in the conjunctive,

while the defenses in the new Note 12 are phrased in the disjunctive.

None of these, though, seems to compel the view that new Note 12 has

necessarily consigned Raven to the trash heap. 

11
case, the Court explicitly discussed the application of the

last sentence of old Note 12 to buyers, sellers, and couriers

alike. Raven, 39 F.3d at 437. In other words, Smack’s

original counsel had a good faith basis—indeed, an

obligation—to argue that Raven still controls. 

We offer none of this commentary as a holding on the

proper construction of Note 12 as it now stands, nor do we

decide whether Raven has in fact survived the revision of

Note 12. (We are hopeful that the U.S. Sentencing

Commission will take this matter up promptly and resolve

it. We urge it to do so.) Rather, this discussion sets the

backdrop to the scene at Smack’s original sentencing when

his counsel advised him to forego these arguments and

stipulate to the highest base offense level conceivably

supported by the facts of his case. 

We observe that Smack’s original counsel could have

advanced either or both of two arguments in lieu of

surrendering with the stipulation in Smack’s plea. First, as

we have illustrated, there is considerable room for

argument about how Note 12 and Raven should operate in

Smack’s case. Second, even if it offers Smack no other

comfort, Note 12 at the very least requires ascertaining the

“agreed-upon quantity of controlled substance.” As we

noted above, the record on the agreed-upon quantity is not

clear. But that is precisely the point: By failing to develop

the record or challenge the government on the agreed-upon

quantity, Smack’s original counsel’s performance fell below

Strickland’s standard of “reasonableness under prevailing

professional norms.” 466 U.S. at 688. 

Having found Smack’s original counsel’s performance

deficient, we turn to Strickland’s second prong. 

C. Prejudice

To satisfy the second prong of Strickland, the “prejudice”

prong, “[t]he defendant must show that there is a

reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a

probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. 

12
We cannot resolve this question on the record before us,

and we certainly cannot say that Smack “is entitled to no

relief,” within the meaning of § 2255. Perhaps indeed

Smack is liable for ten kilograms (or seven, which carries

the same base offense level of 32, see USSG § 2D1.1(c)(4)

(base offense level 32 applies to quantities of at least five

but less than fifteen kilograms of cocaine)). But perhaps he

is liable for only the one kilogram that was exchanged.

Accordingly, as required by § 2255, the District Court

should hold “a prompt hearing” to “determine the issues

and make findings of fact and conclusions of law” on

whether there is a reasonable probability that, had he

received effective assistance of counsel at his original

sentencing, Smack would have established that he was

entitled to a shorter sentence. The reasonable probability of

any decrease in Smack’s sentence would establish

prejudice. See Glover v. United States, 531 U.S. 198 (2001)

(holding that any reduction in sentence constitutes

substantial prejudice for purposes of Strickland analysis).

The remedy, in turn, would be to resentence Smack.3

For the foregoing reasons we will remand the case to the

District Court so that it may conduct a § 2255 hearing. The

Clerk is directed to send a copy of this opinion, calling

attention to Part II.B, to the Chairwoman and members of

the U.S. Sentencing Commission and its General Counsel.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

3. The § 2255 hearing and the resentencing would rely on the same

record. Thus, in the interests of efficiency, the District Court could in its

discretion collapse the two into one. 

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