# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 4, 2008 Decided March 6, 2009 Reissued: March 27, 2009

No. 05-3206

U NITED S TATES OF A MERICA

, A PPELLEE

v.

W ILLIE J. M OULING

, A PPELLANT

Appeal from the United States District Court

for the District of Columbia (No. 04cr00189-01)

Lisa B. Wright , Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was

A. J. Kramer , Federal Public Defender. Neil H. Jaffee

, Assistant Federal Public Defender, entered an appearance.

Elizabeth H. Danello , Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jeffrey A. Taylor , U.S. Attorney, and Roy W. McLeese III and Elizabeth

Trosman , Assistant U.S. Attorneys.

Before: S ENTELLE

, Chief Judge , T ATEL

, Circuit Judge

, and W ILLIAMS

, Senior Circuit Judge

.2

Opinion for the Court filed by Circuit Judge T ATEL

.

T ATEL

, Circuit Judge : Appellant challenges his conviction and sentence on drug and gun offenses, arguing (1)

that the district court’s use of compound voir dire questions prevented him from learning about possible juror bias; (2) that the district court committed multiple errors in determining his sentence; and (3) that he recei ved ineffective assistance of counsel at trial. Although we have repeatedly expressed our concerns about compound voir dire questions, in this case we are limited to reviewing the district court’s actions for plain error, a showing that appellant fails to make. Nor have we any basis for vacating the sentence: appellant’s Apprendi claim fails under plain error review, the sentence is reasonable, and appellant points to no evidence that the

district court misunderstood it s sentencing authority. In keeping with our general practi ce, however, we remand to the district court for an evidentiary hearing on appellant’s

ineffective assistance of counsel claims because the trial record does not conclusively show whether appellant is

entitled to relief.

I.

The case against appellant Willie Mouling stems from cocaine and a handgun found in a parka abandoned by a suspect who fled from police after having been stopped in connection with a hit-and-run accident. Although never charged with the hit-and-run that originally precipitated the investigation, Mouling was ch arged with and tried for possession of cocaine ba se with intent to distribute, 21 U.S.C. § 841, using or carrying a fire arm during a drug-trafficking offense, 18 U.S.C. § 924(c) , and unlawful possession of a firearm and ammunition by a convicted felon, 18 U.S.C. § 922(g)(1). At trial Mouling’s defense centered on a theory of mistaken identity, namely that the police chased a different3

individual, the owner of the dr ug- and gun-containing parka, and ended up arresting Mouling instead.

Events leading up to the chase began when D.C. Metropolitan Police Department Officer Seth Anderson responded to the hit-and-run re port and interviewed a witness who described the driver as a black male with a slim build, wearing black pants and a black parka with gray fur around the hood. Canvassing the area, A nderson saw an individual matching this description climbi ng into a parked blue Isuzu SUV. Anderson blocked the SUV with his squad car and questioned the driver. At trial Anderson testified that his encounter with the suspect lasted one to one and a half

minutes. Anderson further tes tified that the individual produced a Virginia driver’s license bearing the name Willie Mouling, though a defense witness testified that the person he saw talking to an officer next to the SUV was not Mouling,

but rather the owner of the SUV, whom the witness had regularly seen around the ne ighborhood. Other defense

evidence indicated that Mouli ng drove an Accord, not an

SUV.

When Anderson told the suspect that he was investigating a hit-and-run, the suspect beca me nervous and began reaching into his pockets. Instructed by Anderson to remove his hands from his pockets, the individual fled on foot, managing to slip out of his parka when Anderson tried to grab him. Dropping the parka, Anderson gave chase. The path of the chase was disputed at trial, with Ande rson’s description of the route differing somewhat from anot her officer’s and from

measurements of the area take n by a defense investigator indicating that the path Ande rson described was actually blocked by a fence. Accordin g to Anderson, he never lost sight of the suspect and remained within fifteen feet of him throughout the chase, which he said lasted less than a minute.4

In the end Anderson arrested Mouling in an alley behind a neighboring street.

Returning to the vehicles , Anderson retrieved the abandoned parka and discovered a loaded handgun inside.

Police also found three “cookies ”—two of a white substance and one of a cream-colored substance—in the coat, each in its own plastic baggie. Neither the gun nor the bags yielded usable fingerprints.

Anderson testified that Mouling twice signaled his ownership of the parka by referring to it as “my” coat and by stating in regard to the charges he was facing, “well, you know what’s in the coat.” On cross-examination, however, Anderson acknowledged that when Mouling first saw the parka after his arrest, he denied it was his. Tw o of Mouling’s neighbors testified they saw hi m that day wearing a black quilted jacket with no hood, alt hough they acknowledged they had no idea how many coats Mouling owned. Mouling’s booking photo showed him weari ng a black quilted jacket with a collar but apparently without a hood, and the inventory of his clothing listed a black “jacket,” which the government suggests he could have obtained from a family member or a “sympathetic police officer,” Appellee’s Br. 22.

The jury convicted Mouling on all three counts. Given Mouling’s criminal history cat egory of IV, the presentence report proposed a sentencing guidelines range of 168–210 months for drug possession ba sed on a drug quantity of 50– 150 grams of cocaine base, plus a 60-month mandatory sentence for using or carrying a firearm. The government requested a 228-month sentence, which reflected the low end of the guidelines range. Because Mouling’s trial counsel died in a car accident before sentencing, replacement counsel represented Mouling at sentencing.5

The trial court sentenced Mouling to 228 months: 168 months for drug possession and 120 months for gun possession to be served concur rently, and a consecutive 60-month sentence for using or carrying a firearm during a drugtrafficking offense. The trial court also ordered concurrent terms of supervised release: five years for drug possession, three years for firearm use, a nd two years for gun possession.

Mouling appeals, objecting to the court’s c onduct of voir dire in selecting his jury, cha llenging several aspects of his sentencing, and arguing that he r eceived ineffective assistance

of counsel at trial. We a ddress each challenge in turn.

II.

We begin with Mouling’s challe nge to the district court’s use of compound voir dire questions. Because we have reviewed this particular distri ct court’s voir dire questioning multiple times, we offer only a brief description of the practice. As we explained in United States v. West , 458 F.3d 1 (D.C. Cir. 2006), United States v. Littlejohn , 489 F.3d 1335 (D.C. Cir. 2007), and United States v. Harris , 515 F.3d 1307 (D.C. Cir. 2008), the district court’s practice was to ask potential jurors several two-part questions, instructing them to listen to both parts of the que stion before responding. The first part of the question aske d whether jurors had a certain background characteristic or expe rience, and the second part asked whether in light of that characteristic or experience they thought they would have trouble being impartial. Only if a potential juror would answer “yes” to both parts of the question was she to raise her hand in response. If the answer to either part of the questi on was “no,” the potential juror wasn’t to respond at all. For example, the first part of one question asked whether any potenti al juror or any close family member or friend was “currently or previously employed by any law enforcement agency.” Trial Tr. at 58 (Sept. 21,6

2004). The district court then lis ted various organizations that he said qualify as law enforcement agencies, warned the potential jurors not to raise their hands until he asked the second part of the question, and then asked: “As a result of that experience, do you believe that you, you personally would be unable to be fair and impartial to both sides if selected as a juror in this case?” Id. at 58–59. In addition to the law enforcement employment question, the district court posed compound questions on seven other topics: whether any prospective jurors knew each other or had been involved in criminal defense, studied law, served on a grand jury, served on a petit criminal jury, participated in a crime-prevention group, or had been the victim of any crime.

We have previously expressed “deep reservations about [the district court’ s] compound questions.” Littlejohn , 489 F.3d at 1343. As we explained in West , the problem with compound questions is that they “prevent[] the parties from learning the factual premise of th e first part of the question, relying instead upon the juror’s self-assessment of his or her impartiality.” 458 F.3d at 10–11. Here, for example, if a potential juror had actual ly been employed by a law enforcement agency but thought she could nonetheless be impartial, the question format would prevent the parties from learning about and inquiring into the juror’s law enforcement background altogether.

In all three of our prior cases, because defense counsel timely objected to the compound questions, we reviewed the

conduct of voir dire for abuse of discretion, e xplaining that

reversal was warranted if the court abused its discretion and there was substantial prejudice to the accused. See, e.g.

, Littlejohn , 489 F.3d at 1342. In West and Harris , although we found the compound questions “troubling” and cautioned against their use, Harris , 515 F.3d at 1311, we nonetheless7

saw no abuse of discretion becau se the defendants had other means to learn the necessary information about potential jurors, because their cases did not turn on police officer credibility, and because the evidence against them was otherwise strong. Id. at 1313; West , 458 F.3d at 8–9. By contrast, in Littlejohn , where police officer credibility was

central to conviction and the ev idence of guilt was otherwise not overwhelming, we concluded that the compound questions violated the defendant’s Sixth Amendment right to an impartial jury and vacated the conviction. 489 F.3d at

1346.

Unlike in Harris

, West , and Littlejohn , Mouling’s trial lawyer failed to object at voir dire to the compound questions,

so our review is far more limited. See United States v.

Caldwell , 543 F.2d 1333, 1345 (D.C. Cir. 1975); F ED

. R.

C RIM

. P. 52(b). Under plain e rror review, we may reverse only if: “(1) there is error (2) th at is plain and (3) that affects substantial rights, and (4) we find that the error ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’” United States v. Baugham , 449 F.3d 167, 183 (2006) (quoting United States v. Olano , 507 U.S. 725, 732 (1993)).

Mouling argues that his case resembles Littlejohn , where we held that the compound questions posed in that case violated the Sixth Amendment. According to Mouling, the law is therefore crystal clear, and the court committed plain error when it employed such ques tions in empane ling his jury. As the government points out, however, Littlejohn had not been decided at the time of Mouling’s trial. According to the government, any error in us ing compound questions could therefore not have been “plain.” In response, Mouling cites

Johnson v. United States , 520 U.S. 461, 467–68 (1997), for the proposition that the plainness of an error is assessed as of8

the time of appeal, not as of the time of trial. Since Littlejohn was issued prior to this appeal, Mouling insists that the

district court’s er ror was plain.

Mouling’s reliance on Johnson is misplaced. In Johnson “the law at the time of trial was settled and clearly contrary to the law at the time of appeal.” 520 U.S. at 468. In such circumstances, the Court explaine d, “it is enough that an error be ‘plain’ at the time of appellate consideration.” Id . Here, by contrast, the law was far from settled at the time of trial. We had yet to decide West

, Littlejohn , or Harris , and no other D.C. Circuit precedent had cl early held that compound voir dire questions constitu te reversible error.

In circumstances like those we face here—where the law

is unsettled at the time of trial but settled at the time of appeal—whether we assess error as of the time of trial or the time of appeal remains an open question in this circuit. Baugham , 449 F.3d at 183 (recognizing that the Supreme Court has left the question “unr esolved” but not deciding the question for this circuit). We ha ve twice declined to reach the question because in those cases, even assuming any error was plain, the defendants failed to sh ow that the error affected their substantial rights as requi red under the plain error test’s

third element. See id. ; United States v. Johnson , 437 F.3d 69, 74 (D.C. Cir. 2006). Mouling, ho wever, presents a closer

case. Like in Littlejohn , officer credibility was crucial to Mouling’s conviction. Th e evidence on the central question—whether Mouling was the individual stopped by Officer Anderson and thus the owner of the parka—came primarily, indeed almost en tirely, from police officer testimony. Officer Anderson identified Mouling as the SUV driver he stopped for questioning and testified that he never lost sight of the suspect during the chase and that Mouling made comments indicating he owned the parka. That9

testimony was contradicted not only by a defense witness who saw Anderson speaking to someone other than Mouling at the SUV and by defense evidence indicating the chase route was blocked by a fence, but al so by another officer whose description of the chase route differed from An derson’s. To convict Mouling, then, jurors ha d to credit Officer Anderson’s version of events, making it all the more important for voir dire to uncover any juror’s tende ncy to give undue weight to officer testimony. Because of the similarities between Mouling’s case and Littlejohn , where we found a constitutional violation, whether the error affected Mouling’s substantial rights presents a clos e question. As a result, we must now resolve the question we have previously been able

to avoid: whether error can be “plain” when the law, though unsettled at trial, becomes clear by the time of appeal.

After the Supreme Court issued its decision in Johnson

, the circuits have split on this question. See generally H ARRY
T. E DWARDS & L INDA A. E LLIOTT

, F EDERAL C OURTS
S TANDARDS OF R EVIEW : A PPELLATE C OURT R EVIEW OF
D ISTRICT C OURT D ECISIONS AND A GENCY A CTIONS 92 (2007).

The Eleventh assesses error as of the time of appeal, United

States v. Smith , 459 F.3d 1276, 1283 (11th Cir. 2006), while the Ninth does so as of the time of trial, United States v.

Turman , 122 F.3d 1167, 1170 (9th Cir. 1997). We agree with

the Ninth Circuit that Johnson represents an exception to the general rule that error is assessed as of the time of trial, an exception Johnson carved out because when the law is settled at the time of trial, “objections are pointless,” id. at 1170, and “[m]easuring error at the time of trial ‘would result in counsel’s inevitably making a long and virtually useless laundry list of objections to rulings that were plainly supported by existing precedent,’” id. (quoting Johnson , 520 U.S. at 468). By contrast, where the law is unsettled at trial, objections are far from poin tless—they serv e a valuable10

function, alerting the district court to potential error at a

moment when the court can take remedial action. Thus the interest in requiring parties to present their objections to the trial court, which underlies plain error review, applies with

full force. We therefore hold th at where, as here, the law was unsettled at the time of trial but becomes settled by the time of appeal, the general rule applies, and we assess error as of the

time of trial.

Because at the time of Mouli ng’s trial, no clear circuit precedent established the impropr iety of compound voir dire questions in circumstances similar to Mouling’s case, any error in employing such questions cannot have been plain. See United States v. Perry , 479 F.3d 885, 893 n.8 (D.C. Cir. 2007) (noting that “absent preced ent from either the Supreme Court or this court, [an] asserted error falls far short of plain

error” unless it violat es a legal norm that is “absolutely clear (for example because of the clar ity of a statutory provision or court rule)” (internal quotation marks and ellipses omitted)). We therefore have no need to reach the plain error test’s remaining two elements: whether the voir dire affected Mouling’s substantial rights or “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings,” Olano , 507 U.S. at 732 (internal quotation marks omitted).

III.

Appealing his sentence, Mouli ng argues that the district

court committed Apprendi error when it sentenced him without a jury finding on the re quisite quantity of drugs; that

it based its sentence on an unrea sonable rationale; and that it failed to recognize its authority to consider the sentencing guidelines’ disparity between crack and powder cocaine.11

We start with Mouling’s argument that the district court erred in sentencing him based on a drug quantity that the jury never found beyond a reasonable doubt. Because Mouling’s counsel failed to object on this ground at sentencing, our review is once again limited to plain error. See United States

v. Johnson , 331 F.3d 962, 964 (D.C. Cir. 2003).

Under Apprendi v. New Jersey , the jury, not the court, must find any facts “that increase the prescribed range of penalties to which a criminal de fendant is exposed.” 530 U.S. 466, 490 (2000) (internal quotation marks omitted). Such facts include drug quantity under 21 U.S.C. § 841(b)(1), which provides different mandatory sentence ranges based on the quantity of drugs involved. United States v. Fields , 242 F.3d 393, 395 (D.C. Cir. 2001). Under section 841(b)(1)(A), possession of fifty grams or more of cocaine base carries a penalty range of ten years to life; under sect ion 841(b)(1)(B), possession of five grams or more carries a range of five to forty years; and under section 841(b)(1)(C), possession of any amount carries a penalty of up to twenty years.

Mouling argues that because the court instructed the jury only that it had to find beyond a reasonable doubt that he possessed a “detectable amount” of cocaine base, Trial Tr. at 38 (Sept. 28, 2004), and omitted any reference to “50 grams or more,” it should have sentenced him under subsection (C) (detectable amount) rather than under subsection (A) (fifty grams or more). The government points out that although the jury instructions referred to only a “detectable amount,” the verdict form included the necessary quantity. Therefore, according to the government, by checking “guilty” on the verdict form, the jury actual ly found that Mouling possessed fifty grams or more, eliminating any Apprendi error. We disagree.12

Including the quantity in the verdict form cannot cure the omission from the jury instructions. We presume that juries follow the instructions they are given, see Richardson v.

Marsh , 481 U.S. 200, 211 (1987), and here, the instructions mentioned only a “detectable am ount.” Properly following instructions, the jury would have been required to find Mouling guilty if it concluded that he possessed only a detectable amount, regardless of what the verdict form said. The court therefore committed error in sentencing Mouling under subsection (A), and under Apprendi and Fields such error was plain at the time of trial.

Moving on, then, to the remain ing elements of the plain error inquiry, we must consider whether the error affected substantial rights and “serious ly affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Olano

, 507 U.S. at 732 (internal quotations omitted). In United

States v. Webb , the district court had improperly imposed a sentence under subsection (A), but we nonetheless held that

this Apprendi error did not affect substantial rights because the actual sentence, like Mouling’s, fell below the statutory

maximum available under s ubsection (C). 255 F.3d 890, 898 (D.C. Cir. 2001). Mouling argues that Webb no longer

controls because United States v. Booker , 543 U.S. 220 (2005), has made the sentenci ng guidelines advisory. According to Mouling, under a mandatory guidelines regime,

there is no effect on substantia l rights because the defendant

would have received the same sentence based on the guidelines’ drug quantity table under either subsection (A) or subsection (C), but this is no longer true under the advisory guidelines. We nee dn’t decide whether Booker changes our analysis under the pl ain error test’s third element, however, because Mouling cannot show that his sentence meets the

test’s fourth element—that th e error “seriously affects the fairness, integrity or public reputation of judicial13

proceedings,” Olano , 507 U.S. at 732 (internal quotation marks omitted).

In Webb , we held that a sentence based on an Apprendi error did not satisfy the plain e rror test’s fourth element when the evidence of the higher, s ubsection (A) drug quantity was overwhelming and uncontroverted. 255 F.3d at 901–02; see also United States v. Cotton , 535 U.S. 625, 633–34 (2002) (no plain error in failure to include drug quantity in indictment where evidence was “overwhelming” and “essentially uncontroverted”). Attempting to distinguish Webb , Mouling (1) questions the strength of the evidence of drug quantity and (2) suggests that the differen ce in color among the three “cookies” found in the parka c ould create a reasonable doubt

that all three cookies contai ned cocaine base, which could reduce the total weight to below the fifty-gram mark.

As to the first point, M ouling acknowledges that the chemist’s report found a tota l weight of 51.7 grams, but argues that the record contains no evidence as to the accuracy of the chemist’s measurements and points out that those measurements were contradicted by the government’s own expert. He also emphasizes th at 51.7 grams is close to the fifty-gram breakpoint between subsection (A) and subsection (B), rendering more significant any doubt as to the accuracy of the weighing method. Mouling’s efforts to undermine the strength of the evidence are unpe rsuasive. Although it is true that the government never dem onstrated the accuracy of the chemist’s measurements, nothing in the record suggests that the measurements were in any way inaccurate. And although the government expert estimated that the baggies represented “three half-ounce bags,” Trial Tr. at 61 (Sept. 23, 2004), this estimate, far from contradicting the chemist’s measurements (as Mouling suggests), wa s itself based on those

measurements. See Trial Tr. at 59 (Sept. 23, 2004) (expert14

testimony noting the measured weight of 51.7 grams and concluding that each bag c ontained “approximately 17 grams each, which is just slightly ov er a half an ounce on each bag”). To be sure, this case involves quantities close to the fifty-gram mark, but the amount of drugs recovered need not vastly exceed the statutory amount for evidence of quantity to be “overwhelming.” The government produced physical

evidence—the actual cookies themselves—and presented laboratory analyses to establish quantity. “This was not a case, for example, in which the government recovered a quantity of drugs less than the 50-gram statutory threshold, and thus had to rely on ‘vag ue testimonial’ rather than physical evidence to prove that the threshold was met.” United States v. Pettigrew , 346 F.3d 1139, 1147 (D.C. Cir. 2003) (quoting United States v. Fields , 251 F.3d 1041, 1045 (D.C. Cir. 2001)).

As to Mouling’s second point, despite his efforts on appeal, the evidence of drug quantity, as in Webb , was “essentially uncontroverted,” Cotton , 535 U.S. at 633. See

also Johnson , 331 F.3d at 969 (finding failure to submit drug quantity to jury was not plain error when defendant “offered the jurors no scenario under which they could have convicted him of unlawful possession with intent to distribute cocaine base, yet found that the quantit y involved was less than 50 grams”). Neither Mouling’s tr ial counsel nor the lawyer who represented him at sentencing questioned the validity of the weight listed in the chemist’s report or in any other way suggested that Mouling might actually have possessed less than fifty grams. Nor does Mouling now give us any reason

to doubt the chemist’s measurem ents. For the first time, Mouling suggests an alternativ e “fake cookie” theory, which

he contends could have create d reasonable doubt as to the total weight of cocaine base. Mouling suggests that because the chemist tested samples from all three cookies mixed15

together, the test couldn’t dete rmine whether each individual

cookie contained cocaine base. If only the two white cookies, but not the cream-colored cookie, actually contained cocaine, the total weight would have fallen within the range applicable to subsection (B) (five grams or more) rather than exceeding fifty grams under subsection (A). To be sure, we have suggested that presenting on app eal a plausible scenario under which a jury might have convicted the defendant but still found he possessed less than the requisite quantity of drugs could inform the analysis under the plain error test’s fourth

element. See Webb , 255 F.3d at 902. But Mouling presented neither evidence nor argument at trial, sentencing, or on appeal that the difference in cookie color on which his theory depends is in fact linked to the presence or absence of cocaine. Indeed, despite the color difference, the government’s expert testified th at the three cookies “appear[] to be . . . crack cocaine.” Trial Tr. at 57 (Sept. 23, 2004). Mouling’s unsubstantiated theory , presented for the first time on appeal, is thus insufficient to seriously affect the fairness, integrity, or public reputation of judicial proceedings.

Mouling makes an additional related argument: that the

same Apprendi error requires remand for resentencing on the term of supervised release. In imposing a five-year term of supervised release, the district court expressly tracked the mandatory minimum under sect ion 841(b)(1)(A). Section 841(b)(1)(C), under which Mou ling should have been sentenced, carries no mandatory minimum. In United States

v. Graham , we held on plain error revi ew that this exact error

affected the defendant’s substa ntial rights, even though a fiveyear term would have been pe rmissible, albeit not mandatory, under section 841(b)(1)(C). 317 F.3d 262, 273–75 (D.C. Cir. 2003). Although remanding for resentencing on the term of supervised release, Graham apparently never considered the plain error test’s fourth element, which as demonstrated16

above, is fatal to Mouling’s Apprendi claim. Mouling’s challenge to the supervised release term therefore fails for the same reason as his challenge to the term of imprisonment.

Mouling next objects to the way in which the district court considered his decision to proceed to trial rather than accept a plea deal. Starting from the premise that the drug charge carried a minimum of te n years and the firearm charge a minimum of five years, the district court reasoned that Mouling should receive a heftie r sentence than the fifteen years he would have received had he pled guilty. When the government pointed out that it had actually offered Mouling a substantially lower sentence, the district court declined to inquire into the details of the actual deal, stating, “Well, of course, the court doesn’t get in the middle of the plea negotiation process.” Sent’g Tr. at 10 (Oct. 31, 2005).

Although the district court dec lined to consider the actual plea deal the government orig inally offered, Mouling has given us no basis for concluding that the court acted unreasonably in focusing instead on the sentence Mouling would have gotten had he pled guilty to all charges for which he was eventually convicted. We read the district court merely to have recognized that a fifteen-year sentence would

have been at the low end of the guidelines range Mouling

would have received had he b een eligible for the acceptance of responsibility adjustment and to have denied Mouling the benefit of that adjustment. Th e district court’s decision to impose a within-guidelines se ntence absent acceptance of responsibility was reasonable. Although the district court wouldn’t have erred had it considered the actual plea deal, it was not required to do so, nor did it base the sentence on any clearly erroneous factual findings . Given that the district court correctly calculated Mou ling’s guidelines range, treated the guidelines as advisory, cons idered the required 18 U.S.C.17

§ 3553(a) factors, and explaine d its reasoning adequately to permit appellate review, it comm itted no procedural error.

See Gall v. United States , 128 S. Ct. 586, 597–98 (2007).

Finally, Mouling urges us to remand for resentencing in light of Kimbrough v. United States , which confirms that under the advisory guidelines, a district court may sentence below the applicable guidelines range in order to account for the sentencing disparity between powder and crack cocaine, 128 U.S. 558, 575 (2007). At se ntencing, Mouling’s counsel urged the court to consider this disparity and reduce Mouling’s sentence accordingly. Given the district court’s failure to expressly address this point, Mouling thinks that the court may have misunderstood it s authority to consider the disparity and that remand is neces sary to allow the court to do

so now.

We generally remand for reconsideration only upon some record showing that the dist rict court misunderstood its sentencing authority. See United States v. Godines , 433 F.3d 68, 70 (D.C. Cir. 2006) (refusing to remand where nothing in the record rebutted “the presum ption ‘that the district court knew and applied the law correctly.’” (quoting United States v. Ayers , 428 F.3d 312, 315 (D.C. Cir. 2005))). Here, Mouling’s counsel strenuously ar gued that the court should consider the crack-powder disparity. Although the government insisted that the court lacked authority to do so,

the record contains no indication that the district court agreed with the government or ot herwise misapprehended its authority. To the contrary, th e court repeatedly noted the advisory nature of the guidelines. Although Mouling now argues that a presumption that the district court knew and applied the law correctly is unjustified where, as here, the

court was silent as to its view on the matter and the law is “completely up in the air,” A ppellant’s Reply Br. 20, Mouling18

concedes that at the time of sentencing in this case some district courts were permissibl y considering the disparity. The law therefore was hardly so inscrutable that a district court, particularly one that clearly understood the advisory nature of the guidelines, could not be presumed to follow it correctly. Remand on this gr ound is therefore unwarranted.

IV.

This brings us finally to M ouling’s ineffective assistance of counsel claim. For Mouling to succeed, he “must show two things: that his lawyer ma de errors ‘so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,’ and that counsel’s deficient performance was prejudicial, i.e. , that there is a ‘reasonable probability that, bu t for counsel’s unprofessional errors, the result of the proceeding would have been

different.’” United States v. Gaviria , 116 F.3d 1498, 1512 (D.C. Cir. 1997) (citation omitted) (quoting Strickland v. Washington , 466 U.S. 668, 687, 694 (1984)).

In this circuit, when an appellant makes an ineffective

assistance of counsel claim for the first time on appeal, we generally remand for “a fact-fi nding hearing, at which the district court can explore ‘w hether alleged episodes of substandard representation reflec t the trial counsel’s informed

tactical choice or a decision undertaken out of ignorance of

the relevant law.’” United States v. Fennell , 53 F.3d 1296, 1303 (D.C. Cir. 1995) (quoting United States v. Cyrus , 890 F.2d 1245, 1247 (D.C. Cir. 1989)), modified on reh’g , 77 F.3d 510 (D.C. Cir. 1996). We have recognized two exceptions to this general practice: “when the trial record alone conclusively shows that the defe ndant is entitled to no relief,” and the “rare exception when the trial record conclusively shows the contrary.” Fennell , 53 F.3d at 1303–04.19

Mouling makes six arguments in support of his

ineffective assistance of counsel claim: that defense counsel (1) failed to advise him of th e government’s offer of a fiveyear sentence in exchange for a guilty plea; (2) failed to object to the compound questi ons at voir dire; (3) unnecessarily introduced a police re port containing prejudicial hearsay and failed to call two defense witnesses who would have testified about the identity of the hit-and -run suspect; (4) misled him into believing th at he was bound by his earlier decision not to testify; (5) fa iled to renew the motion for judgment of acquittal despite th e insufficient evidence of drug quantity; and (6) failed to make adequate inquiries into whether jury deliberations were affected by a juror who asked

to be excused due to her be lief that she observed defense counsel improperly communi cating with a witness.

We need look no further than Mouling’s first allegation—that his counsel failed to advise him of the government’s plea offer—to agr ee that remand is necessary.

In United States v. Gaviria , we remanded for an evidentiary hearing when defense counsel gave the defendant incorrect information about the length of sentence offered by the government in exchange for a guilty plea. 116 F.3d at 1512,

1514. We indicated that the he aring should address whether the defendant “would have taken the Government’s plea offer had he known of his true [sentencing] exposure.” Id. at 1514. Similarly, Mouling claims that his counsel informed him only of a fifteen-year plea offer, a lthough the government had also offered a five-year deal. The government argues that Mouling cannot have been prejudiced by counsel’s failure to inform him of the deal because he learned of the plea offer when the prosecutor mentioned it on the reco rd in his presence. But the prosecutor’s on-the-record reference to the offer identified only the statutory provision to which the government would have allowed Mouling to plead, not the sentencing exposure20

that would have flowed from such a plea. As in Gaviria

, then, an evidentiary hearing is needed to evaluate whether Mouling knew the details of th e plea offer and whether there was a reasonable probability that he would have accepted the offer had counsel properly informed him of it.

Given that we must remand for an evidentiary hearing on this claim, we shall also leave it to the district court to consider Mouling’s other ineffective-assistance allegations in

the first instance.

V.

While otherwise rejecting Mouling’s challenges, we

remand to the district court fo r an evidentiary hearing on his

ineffective assistance of counsel claims.

So ordered.