2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-29-2005

USA v. Booth

Precedential or Non-Precedential: Precedential

Docket No. 03-3893

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 03-3893

 

UNITED STATES OF AMERICA

 v.

BRIAN BOOTH,

 Appellant

 

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 98-cr-00322)

District Judge: Honorable James M. Munley

 

Submitted Under Third Circuit LAR 34.1(a)

December 6, 2005

Before: RENDELL, FISHER

and VAN ANTWERPEN, Circuit Judges.

(Filed December 29, 2005)
2

Tina Schneider

44 Exchange Street, Suite 201

Portland, ME 04101

Attorney for Appellant

James T. Clancy

Office of United States Attorney

228 Walnut Street

220 Federal Building and Courthouse

P.O. Box 11754

Harrisburg, PA 17108

Attorney for Appellee

 

OPINION OF THE COURT

 

FISHER, Circuit Judge.

Brian Booth appeals from the District Court’s decision

denying his motion to vacate his sentence brought pursuant to 28

U.S.C. § 2255. Booth was convicted by a jury on two counts

relating to his role in setting off a pipe bomb at an apartment

building. Booth contends that his trial counsel – aware of the

substantial evidence against Booth and that Booth did not want

to cooperate with the Government – rendered ineffective

assistance of counsel by not informing Booth that he could have

entered an “open” guilty plea to both counts without proceeding

to trial, potentially entitling him to a three-level reduction for

acceptance of responsibility under the United States Sentencing
An “open” guilty plea is a plea made by the defendant 1

without the benefit of a plea agreement entered into with the

Government. See, e.g., United States v. Casiano, 113 F.3d 420,

423 (3d Cir. 1997).

3

Guidelines. Because we conclude that Booth’s motion set forth 1

sufficient allegations to require an evidentiary hearing, we will

vacate the judgment of the District Court and remand for an

evidentiary hearing on the merits of Booth’s claims.

I.

Early in the morning of May 15, 1998, simultaneous

explosions from two pipe bombs rocked a multi-unit rental

property located in Stroudsburg, Pennsylvania. Fortunately,

none of the seven sleeping residents inside the apartment

building was injured. The blast, however, caused significant

property damage. An investigation following the incident

revealed that the pipe bombs, which were made out of copper

pipes and packed with smokeless powder, had been placed on

the rear kitchen door and the front side door of the building.

Additional evidence uncovered during the investigation

overwhelmingly established that Booth was responsible for the

explosions.

Thereafter, the Government indicted Booth on two

counts. Count one charged Booth with maliciously damaging by

explosives property affecting interstate commerce, in violation

of 18 U.S.C. § 844(i). Count two charged Booth with
Five primary witnesses testified against Booth at trial. 2

Vincent Lipari, who lived at the apartment building at the time

4

possession of an unregistered firearm in the form of a bomb, in

violation of 18 U.S.C. §§ 5841, 5861(d), and 5871.

Prior to trial, the Government and Booth’s trial counsel

entered into plea negotiations. The Government’s initial plea

offer was for Booth to plead guilty to count one of the

indictment. In exchange, the Government offered to dismiss

count two of the indictment, recommend that Booth be

sentenced to the mandatory minimum sentence of 60 months

imprisonment, and possibly bring a motion for downward

departure pursuant to 18 U.S.C. § 3553(e) if it determined that

Booth rendered substantial assistance in the investigation of a

possible co-defendant.

Booth rejected the Government’s plea offer and made a

counter-offer to plead guilty to count two of the indictment in

exchange for the Government’s dismissal of count one. The

Government informed Booth’s counsel that it would consider

the plea to the lesser charge only if Booth would give a proffer

concerning his own culpability and the criminal involvement of

any other participants involved in the bombing. Booth balked

at the proposal because he did not want to cooperate against

anyone else involved in the crime.

Because the parties could not agree on an acceptable

resolution of the charges, Booth proceeded to a jury trial. The

jury subsequently found Booth guilty of both charges.2
of the explosion, testified that he had a confrontation with Booth

on the previous evening over $40.00 that Booth owed to Lipari.

Brian Peters testified that Booth told him that he had an

argument with a couple of fraternity brothers who lived at the

apartment. Peters further testified that Booth told him that he

later went back to the property and placed a pipe bomb on the

front door of the house, and that Booth’s roommate placed the

second pipe bomb on the back door. Aaron Taylor, a former

middle school and high school classmate of Booth’s, testified

that Booth told him that he knew how to construct a pipe bomb

in a short amount of time. Michael Padula, a student at East

Stroudsburg University who had known Booth since they were

in the seventh grade together, testified that Booth told him that

he had an altercation with Lipari. When the two began

discussing the bombing at 202 Main Street, Booth said to

Padula, “you know, well, I did that.” Finally, Jason Crater, a

long-time friend of Booth’s, testified that Booth told him on

May 15, 1998, that “he had a problem with them people in that

house last night, and that he had a pipe bomb and put it under

their porch.”

Booth was sentenced under the 1998 version of the 3

Sentencing Guidelines. See UNITED STATES SENTENCING

5

At the sentencing hearing, the District Court determined

that Booth’s sentencing range under the Sentencing Guidelines

was 78 to 97 months imprisonment. The District Court

sentenced Booth to concurrent 90-month sentences of

imprisonment, concurrent three-year terms of supervised release,

and restitution in the amount of $2,052. The District Court did 3
GUIDELINES § 1B1.11(b)(1) (2000).

6

not consider a downward adjustment for acceptance of

responsibility pursuant to section § 3E1.1 of the Sentencing

Guidelines because Booth had proceeded to trial and challenged

his guilt. We affirmed the judgment of conviction on March 14,

2001.

On June 13, 2002, Booth filed a pro se motion to vacate

his sentence pursuant to 28 U.S.C. § 2255. Booth alleged in his

motion that his trial counsel, aware that the evidence against

Booth was overwhelming and that Booth did not want to

cooperate with the Government, did not inform Booth that he

could have entered an open guilty plea to both counts of the

indictment, likely entitling him to a three-level reduction for

acceptance of responsibility. Responding to Booth’s motion to

vacate sentence, the Government argued that “acceptance of

responsibility was not an option in [Booth’s] case because of the

mandatory minimum sentence applicable to the charge against

him.” In addition, the Government stated that Booth’s trial

counsel “fully advised Petitioner of his plea options,” and that

Booth’s “belief that he could have received a more favorable

plea resolution is a pipe dream.”

The Government’s response relied primarily upon a

declaration from Booth’s trial counsel. That declaration

corroborates the history of plea negotiations between Booth and

the Government and states that Booth had told his trial counsel

that “he could not accept the terms of the proffer letter, namely,

cooperating against anyone else involved”:
7

Booth was advised by me of the process by which

he could obtain a reduction in the sentence he was

facing. He chose not to accept the terms of the

proffer letter, or, more specifically, to attempt to

render substantial assistance to the Government

by telling them everything he knew about the

crimes and who was involved.

The declaration also states that Booth was informed of all

possible defenses and mitigating factors that were available at

sentencing, and that Booth was informed of the “extensive

factual investigation” conducted by his trial counsel’s

investigator. Notably absent from the declaration, however, was

any indication that Booth’s trial counsel had discussed with

Booth the option of entering an open plea to counts one and two.

On July 18, 2003, the District Court denied Booth’s

motion without holding an evidentiary hearing. The District

Court concluded that Booth’s trial counsel adequately advised

him of the consequences of his plea decisions because he fully

informed Booth of all plea negotiations with the Government.

The District Court characterized Booth’s argument that he could

have received a lower sentence by entering an open plea as

“highly speculative.” The District Court stated that Booth had

the opportunity for a lesser sentence at count two of the

indictment, that he had been aware of the “costs of that option”

(i.e., cooperating against a possible co-defendant), and that he

had rejected the option and gone to trial because “those costs

were not to his liking.” The District Court further determined

that Booth was required to go to trial on both counts because he

chose not to accept the Government’s plea offer to plead guilty
8

to count two. The District Court ultimately concluded that

Booth’s argument that he could have received a lighter sentence

was futile because “[e]ven if he could have received a lighter

sentence for Count II, his sentence for Count I remains at 90

months.”

II.

Booth appealed the District Court’s denial of his motion

to vacate sentence, and we granted a certificate of appealability.

We have jurisdiction over Booth’s appeal pursuant to 28 U.S.C.

§ 2253. We review the District Court’s decision to deny an

evidentiary hearing on a motion to vacate sentence for abuse of

discretion. United States v. McCoy, 410 F.3d 124, 131 (3d Cir.

2005).

III.

Although a district court has discretion whether to order

a hearing when a defendant brings a motion to vacate sentence

pursuant to 28 U.S.C. § 2255, our caselaw has imposed

limitations on the exercise of that discretion. In considering a

motion to vacate a defendant’s sentence, “the court must accept

the truth of the movant’s factual allegations unless they are

clearly frivolous on the basis of the existing record.”

Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d

Cir. 1989). See also R. GOVERNING § 2255 CASES R. 4(b). The

district court is required to hold an evidentiary hearing “unless

the motion and files and records of the case show conclusively

that the movant is not entitled to relief.” Id. We have

characterized this standard as creating a “reasonably low
9

threshold for habeas petitioners to meet.” McCoy, 410 F.3d at

134 (quoting Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir.

2001)). Thus, the district court abuses its discretion if it fails to

hold an evidentiary hearing when the files and records of the

case are inconclusive as to whether the movant is entitled to

relief. Id. at 131, 134 (“If [the] petition allege[s] any facts

warranting relief under § 2255 that are not clearly resolved by

the record, the District Court [is] obligated to follow the

statutory mandate to hold an evidentiary hearing.”).

In this case, Booth alleges that his trial counsel was

ineffective because he failed to inform Booth of all possible plea

options to resolve his criminal case and entitle him to a more

favorable sentence. In order to determine whether Booth’s trial

counsel was constitutionally ineffective under the Sixth

Amendment, we must apply the familiar standard developed in

Strickland v. Washington, 466 U.S. 668 (1984), and its progeny.

Under that standard, a criminal defendant may demonstrate that

his representation was constitutionally inadequate by proving:

(1) that his attorney’s performance was deficient, i.e.,

unreasonable under prevailing professional standards; and (2)

that he was prejudiced by the attorney’s performance. Forte,

865 F.2d at 62 (citing Strickland, 466 U.S. at 687, 694). Under

the first prong, “[j]udicial scrutiny . . . is highly deferential,” and

courts “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional

assistance.” Strickland, 466 U.S. at 688-89. In order to

establish prejudice, the defendant must prove that “there is a

reasonable probability that, but for counsel’s unprofessional

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

Id. at 694. We have endorsed the practical suggestion in
Indeed, as set forth below, the practical suggestion to 4

consider initially the prejudice prong is particularly compelling

in this case where our examination of the prejudice prong helps

inform our inquiry into the performance of Booth’s trial counsel.

In Hill, the Court determined that the defendant was not 5

prejudiced because he failed to allege in his habeas petition that

10

Strickland to consider the prejudice prong before examining the

performance of counsel prong “because this course of action is

less burdensome to defense counsel.” McCoy, 410 F.3d at 132

n.6; see Strickland, 466 U.S. at 694 (stating that, “[i]f it is easier

to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice, which we expect will often be so,” the

prejudice prong should be examined before the performance

prong “to ensure that ineffectiveness claims do not become so

burdensome to defense counsel that the entire criminal justice

system suffers as a result”).4

A. Prejudice

In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme

Court held that the Strickland test applies to advice given by

counsel in the context of guilty plea discussions. See id. at 58

(stating that “the Strickland v. Washington test applies to

challenges to guilty pleas based on ineffective assistance of

counsel”). The Court determined that the prejudice prong in the

context of the plea process “focuses on whether counsel’s

constitutionally ineffective performance affected the outcome of

the plea process.” Id. at 58. Thus, under the prejudice prong, 5
“had counsel correctly informed him about his parole eligibility

date, he would have pleaded not guilty and insisted on going to

trial.” Hill, 474 U.S. at 60.

The Government does not argue that the District Court 6

would have had a basis to reject an open plea to counts one and

two in this case. In fact, the Government’s argument proceeds

on the assumption that a plea would have been accepted by the

court, but that Booth would not have been prejudiced since he

could not have “received the benefit of a reduction for

acceptance of responsibility because of the mandatory minimum

sentence attached to the crime he committed.”

11

Booth must demonstrate that, but for his trial attorney’s alleged

ineffectiveness, he would have likely received a lower sentence.

The Government disputes that Booth would have

received a lower sentence because “the record shows that trial

counsel, along with the prosecutor and the probation officer,

estimated that the Defendant would not have received the

benefit of a reduction for acceptance of responsibility because

of the minimum mandatory sentence attached to the crime he

committed.” The Government, however, erroneously focuses on

what Booth’s guideline offense level would have been had he

entered an open plea solely to count one. The Government

asserts that, had Booth pled guilty to count one and received a

three-level reduction, he would have been subject to a term of

imprisonment of 60 months. The Government’s argument 6

ignores that Booth was subject to two counts of an indictment,
12

and, absent a plea agreement, the Government would not have

voluntarily decided to dismiss the charges at count two.

In this case, the District Court sentenced Booth to

concurrent 90-month sentences of imprisonment. Based upon

an offense level of 26 (because the two crimes were grouped

together pursuant to sections 3D1.1 through 3D1.5 of the

Sentencing Guidelines) and a criminal history category of III,

Booth’s guideline offense level was 78 to 97 months

imprisonment. Assuming that Booth would have received a

three-level reduction for acceptance of responsibility, he would

have been subject to a guideline range of 57 to 71 months;

however, because the statutory minimum sentence at count one

was 60 months, the guideline range would have been 60 to 71

months imprisonment. UNITED STATES SENTENCING

GUIDELINES § 5G1.1(c). Thus, the Government’s mathematical

calculations ignore the reality of what actually would have

happened had Booth entered an open plea to counts one and

two. Because Booth was actually sentenced to 90 months

imprisonment, he arguably received a sentence of 19 to 30

months greater than what he would have received had he entered

an open plea to counts one and two.

The Government additionally argues that Booth was not

prejudiced because a guilty plea does not entitle a criminal

defendant to a three-level adjustment for acceptance of

responsibility under the Sentencing Guidelines as a matter of
Contrary to the Government’s apparent argument, 7

nothing in the language or application notes to section 3E1.1

provides that courts are precluded from finding that a defendant

qualifies for acceptance of responsibility if the reduction would

drop the defendant’s sentencing range below the statutory

minimum sentence. There is a good reason for this: the

Sentencing Guidelines have a built-in safeguard to prevent a

defendant’s sentence from dropping below the applicable

statutory minimum sentence. Section 5G1.1(b) provides that,

“[w]here a statutorily authorized minimum sentence is greater

than the maximum of the applicable guideline range, the

statutorily required minimum sentence shall be the guideline

sentence.” UNITED STATES SENTENCING GUIDELINES

§ 5G1.1(b). Thus, if Booth would have pled guilty solely to

count one pursuant to a plea agreement, Booth could have

received a three-level reduction for acceptance of responsibility.

In that event, Booth’s statutory minimum sentence would have

been greater than his possible guideline sentence, and the 60-

month statutory minimum sentence would have been the

guideline sentence pursuant to section 5G1.1(b).

13

right. See UNITED STATES SENTENCING GUIDELINES § 3E1.1

cmt. n.3 (1998).7

Under section 3E1.1(a) of the 1998 Sentencing

Guidelines, a defendant who “clearly demonstrates acceptance

of responsibility for his offense” is entitled to have his offense

level decreased by two levels. UNITED STATES SENTENCING

GUIDELINES § 3E1.1(a) (1998). A defendant may have his

offense level decreased by one additional level if: the defendant
We have stated that an application note to the 8

Sentencing Guidelines is binding “unless it runs afoul of the

Constitution or a federal statute, or is plainly erroneous or

inconsistent with the section of the guidelines it purports to

interpret.” United States v. McQuilkin, 97 F.3d 723, 731 (3d

Cir. 1996).

14

qualifies for the two-level reduction under subsection (a); the

defendant’s offense level is 16 or greater prior to the operation

of subsection (a); and the defendant assisted authorities by

(1) “timely providing complete information to the government

regarding his role in the offense,” or (2) “timely notifying

authorities of his intention to enter a plea of guilty, thereby

permitting the government to avoid preparing for trial and

permitting the court to allocate its resources effectively.”

UNITED STATES SENTENCING GUIDELINES § 3E1.1(b) (1998).

Application note 5 to section 3E1.1 provides that “the

sentencing judge is in a unique position to evaluate a

defendant’s acceptance of responsibility.” UNITED STATES

SENTENCING GUIDELINES § 3E1.1 cmt. n.5 (1998). According

to Application note 1, the district court is directed to consider,

inter alia, whether the defendant “truthfully admitt[ed] the

conduct comprising the offense(s) of conviction, and truthfully

admitt[ed] or not falsely den[ied] any additional relevant

conduct for which the defendant is accountable[.]” UNITED

STATES SENTENCING GUIDELINES § 3E1.1 cmt. n.1(a) (1998).8

We have repeatedly held that district courts do not abuse their

discretion in denying the two-level adjustment for acceptance of

responsibility in situations where the defendant denied his
The Government cites United States v. Larkin, 171 F.3d 9

556, 558 (7th Cir. 1999), for the proposition that the District

Court could have denied the adjustment for acceptance of

responsibility because Booth “rejected several offers to reduce

the charges against him in exchange for information pertaining

to the crime.” In Larkin, however, the court did not reject the

three-level reduction because of the defendant’s failure to enter

into a plea agreement. Rather the court of appeals, as in our

decisions cited above, determined that the district court did not

abuse its discretion to deny the reduction because the defendant

refused to admit his complicity in all relevant conduct. See id.

at 558 (stating that “the district court based its denial of the

acceptance of responsibility reduction on the fact that Larkin,

acting on the advice of his lawyer, refused to tell the probation

office or the court where he got the marijuana”); see also id. at

559 (holding that “it was clearly permissible for the district court

to condition the reduction for acceptance of responsibility on

Larkin's willingness to provide this information”).

15

complicity for the crime and all other relevant conduct. See,

e.g., United States v. Bennett, 161 F.3d 171 (3d Cir. 1998);

United States v. Veksler, 62 F.3d 544 (3d Cir. 1995); United

States v. Frierson, 945 F.2d 650 (3d Cir. 1991); United States v.

Singh, 923 F.2d 1039 (3d Cir. 1991).9

In this case, however, based upon the stage of the

proceedings and the allegations in Booth’s habeas petition, we

must accept that Booth would have truthfully admitted the

conduct comprising counts one and two and any additional

relevant conduct. In that event, Booth would have likely
16

received a three-level reduction for acceptance of responsibility.

Booth was prejudiced because, by proceeding to trial and

becoming ineligible for the three-level adjustment for

acceptance of responsibility, he was exposed to an additional 19

to 30 months imprisonment. As a result, we cannot find that the

allegations in Booth’s habeas petition conclusively bars him

from demonstrating prejudice under Strickland.

B. Performance

The Government argues that Booth’s trial counsel did not

perform unreasonably because he entered into extensive plea

negotiations with the Government which resulted in two

proposed plea agreements. The flaw in the Government’s

argument is that it assumes that Booth had only two possible

options: either agree to the Government’s proposed plea

agreement at count two, or proceed to trial. Booth’s habeas

petition, however, is premised on the argument that his trial

counsel, realizing the overwhelming weight of the evidence and

knowing that Booth continually objected to cooperating with the

government, should have informed him of a third option:

entering an open plea and receiving a three-level reduction in his

offense level for acceptance of responsibility.

Booth’s pro se habeas petition contains a detailed factual

statement clearly setting forth allegations that his trial counsel

never informed him that he could enter an open plea. The

Government asserts that the trial counsel’s declaration, stating

that he discussed with Booth “all defenses that were available to

[Booth] at sentencing and . . . any factors that could mitigate the

sentence he could receive,” conclusively establishes that Booth
17

was informed he could enter a guilty plea without entering into

a plea agreement. The declaration, however, focuses almost

exclusively on the history of the plea negotiations, rather than

the specific allegations in Booth’s petition. In this respect, the

declaration is more probative of what it does not address rather

than what it does.

The determination of whether trial counsel’s failure to

inform Booth that he could enter an open plea was

constitutionally deficient must be viewed through the prism of

the specific facts of this case. In this respect, two facts are key:

(1) the District Court itself recognized (and the Government

does not dispute) that the evidence against Booth was

“overwhelming”; and (2) the declaration of Booth’s trial counsel

acknowledges that Booth did not want to enter into a plea

agreement because he did not want to provide incriminating

information to the government regarding a possible codefendant’s role in the offense. Under these facts, it is irrelevant

that Booth may have received a better sentence had he accepted

the proposed plea agreement because Booth was never going to

provide the government with incriminating information against

a possible co-defendant. Booth’s reluctance to cooperate with

the Government was the deal-breaker. From this reluctance to

cooperate, the Government wants us to determine that Booth’s

only other option was to go to trial.

It is clear, however, that another reasonable option was

available. We have stated that “a defendant has the right to

make a reasonably informed decision whether to accept a plea

offer” because “[k]nowledge of the comparative sentence

exposure between standing trial and accepting a plea offer will
18

often be crucial to the decision whether to plead guilty.” United

States v. Day, 969 F.2d 39, 44 (3d Cir. 1992) (quoting Hill, 477

U.S. at 56-57). If a defendant raises sufficient allegations that

his counsel’s advice in helping to make that decision was “so

insufficient that it undermined [the defendant’s] ability to make

an intelligent decision about whether to accept the [plea] offer,”

the defendant is entitled to an evidentiary hearing on the merits

of his habeas petition. Id. at 43-44; see also United States v.

Day, 285 F.3d 1167, 1172 (9th Cir. 2002) (holding that the

defendant was prejudiced because his counsel gave him

erroneous advice that led him to proceed to trial, thus precluding

him from receiving a three-level reduction for acceptance of

responsibility).

In this case, Booth has raised sufficient allegations that

his trial counsel deprived him of the opportunity to make a

reasonably informed decision regarding whether to change his

plea or proceed to trial because his trial counsel failed to inform

him that he could enter an open plea. As a result, Booth was

potentially subject to an increase of 19 to 30 months

imprisonment based upon his trial counsel’s failure to advise

him about all possible plea options. These allegations, which

have not been rebutted by the declaration of Booth’s trial

counsel, may support Booth’s claim. Thus, the District Court

erred in denying Booth’s habeas petition without holding an

evidentiary hearing.

IV.

For the reasons set forth above, we conclude that Booth

is entitled to an evidentiary hearing on the merits of his habeas
19

claim. Accordingly, we will reverse and remand the decision of

the District Court for further proceedings consistent with this

opinion.