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 

UNITED STATES OF AMERICA, 

APPELLEE

v. 

WILLIE J. MOULING, 

APPELLANT

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: SENTELLE, Chief Judge, TATEL, Circuit Judge, 

and WILLIAMS, Senior Circuit Judge. 
2 

Opinion for the Court filed by Circuit Judge TATEL. 

TATEL, 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 received 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 its sentencing authority. In 

keeping with our general practice, 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 charged with and tried for 

possession of cocaine base with intent to distribute, 21 U.S.C. 

§ 841, using or carrying a firearm 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 different 
3 

individual, the owner of the drug- 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 report 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, Anderson saw an individual 

matching this description climbing 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 testified 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 neighborhood. Other defense 

evidence indicated that Mouling drove an Accord, not an 

SUV. 

When Anderson told the suspect that he was investigating 

a hit-and-run, the suspect became 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 Anderson’s description of the route 

differing somewhat from another officer’s and from 

measurements of the area taken by a defense investigator 

indicating that the path Anderson described was actually 

blocked by a fence. According 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. Two of Mouling’s 

neighbors testified they saw him that day wearing a black 

quilted jacket with no hood, although they acknowledged they 

had no idea how many coats Mouling owned. Mouling’s 

booking photo showed him wearing 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 category of IV, the presentence 

report proposed a sentencing guidelines range of 168–210 

months for drug possession based 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 concurrently, 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, and two years for gun possession. 

Mouling appeals, objecting to the court’s conduct of voir 

dire in selecting his jury, challenging several aspects of his 

sentencing, and arguing that he received ineffective assistance 

of counsel at trial. We address each challenge in turn. 

II. 

We begin with Mouling’s challenge to the district court’s 

use of compound voir dire questions. Because we have 

reviewed this particular district 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 question before responding. The 

first part of the question asked whether jurors had a certain 

background characteristic or experience, 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 question was “no,” the potential juror 

wasn’t to respond at all. For example, the first part of one 

question asked whether any potential 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 listed 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 the 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 actually 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, explaining 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 nonetheless 
7 

saw no abuse of discretion because 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 evidence 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); FED. R.

CRIM. P. 52(b). Under plain error review, we may reverse 

only if: “(1) there is error (2) that 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 questions in empaneling 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 using 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 of 
8 

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 error 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 explained, “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 clearly held that compound voir 

dire questions constitute 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 “unresolved” but not deciding the 

question for this circuit). We have twice declined to reach the 

question because in those cases, even assuming any error was 

plain, the defendants failed to show that the error affected 

their substantial rights as required under the plain error test’s 

third element. See id.; United States v. Johnson, 437 F.3d 69, 

74 (D.C. Cir. 2006). Mouling, however, presents a closer 

case. Like in Littlejohn, officer credibility was crucial to 

Mouling’s conviction. The 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 entirely, 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. That 
9 

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 also by another officer whose 

description of the chase route differed from Anderson’s. To 

convict Mouling, then, jurors had to credit Officer Anderson’s 

version of events, making it all the more important for voir 

dire to uncover any juror’s tendency 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 close 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 HARRY 

T. EDWARDS & LINDA A. ELLIOTT, FEDERAL COURTS 

STANDARDS OF REVIEW: APPELLATE COURT REVIEW OF 

DISTRICT COURT DECISIONS AND AGENCY ACTIONS 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 pointless—they serve a valuable 
10 

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 that 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 Mouling’s trial, no clear circuit 

precedent established the impropriety 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 precedent from either the Supreme 

Court or this court, [an] asserted error falls far short of plain 

error” unless it violates a legal norm that is “absolutely clear 

(for example because of the clarity 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, Mouling argues that the district 

court committed Apprendi error when it sentenced him 

without a jury finding on the requisite quantity of drugs; that 

it based its sentence on an unreasonable 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 defendant 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 section 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 actually 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 amount.” 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 remaining elements of the plain 

error inquiry, we must consider whether the error affected 

substantial rights and “seriously 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 subsection (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 sentencing guidelines advisory. 

According to Mouling, under a mandatory guidelines regime, 

there is no effect on substantial 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 needn’t decide whether Booker changes our 

analysis under the plain error test’s third element, however, 

because Mouling cannot show that his sentence meets the 

test’s fourth element—that the error “seriously affects the 

fairness, integrity or public reputation of judicial 
13 

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 error test’s fourth element when 

the evidence of the higher, subsection (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 difference in color among the three 

“cookies” found in the parka could create a reasonable doubt 

that all three cookies contained cocaine base, which could 

reduce the total weight to below the fifty-gram mark. 

As to the first point, Mouling acknowledges that the 

chemist’s report found a total 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 that 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 unpersuasive. Although it is true 

that the government never demonstrated 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), was itself based on those 

measurements. See Trial Tr. at 59 (Sept. 23, 2004) (expert 
14 

testimony noting the measured weight of 51.7 grams and 

concluding that each bag contained “approximately 17 grams 

each, which is just slightly over 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 ‘vague 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 quantity involved was less than 50 

grams”). Neither Mouling’s trial 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 measurements. For the first time, 

Mouling suggests an alternative “fake cookie” theory, which 

he contends could have created reasonable doubt as to the 

total weight of cocaine base. Mouling suggests that because 

the chemist tested samples from all three cookies mixed 
15 

together, the test couldn’t determine 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 appeal 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 that 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 section 841(b)(1)(A). Section 

841(b)(1)(C), under which Mouling should have been 

sentenced, carries no mandatory minimum. In United States 

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

affected the defendant’s substantial rights, even though a fiveyear term would have been permissible, 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 demonstrated 
16 

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 ten years and the firearm charge 

a minimum of five years, the district court reasoned that 

Mouling should receive a heftier 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 declined to consider the actual 

plea deal the government originally 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 been eligible for the acceptance 

of responsibility adjustment and to have denied Mouling the 

benefit of that adjustment. The district court’s decision to 

impose a within-guidelines sentence 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 Mouling’s guidelines range, treated 

the guidelines as advisory, considered the required 18 U.S.C. 
17 

§ 3553(a) factors, and explained its reasoning adequately to 

permit appellate review, it committed 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 sentencing, 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 its authority to consider the 

disparity and that remand is necessary to allow the court to do 

so now. 

We generally remand for reconsideration only upon some 

record showing that the district 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 presumption ‘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 argued 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 otherwise misapprehended its 

authority. To the contrary, the 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,” Appellant’s Reply Br. 20, Mouling 
18 

concedes that at the time of sentencing in this case some 

district courts were permissibly 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 ground is therefore unwarranted. 

IV. 

This brings us finally to Mouling’s ineffective assistance 

of counsel claim. For Mouling to succeed, he “must show 

two things: that his lawyer made 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, but 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-finding hearing, at which the 

district court can explore ‘whether alleged episodes of 

substandard representation reflect 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 defendant 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 the government’s offer of a fiveyear sentence in exchange for a guilty plea; (2) failed to 

object to the compound questions at voir dire; (3) 

unnecessarily introduced a police report 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 that he was bound by his earlier 

decision not to testify; (5) failed to renew the motion for 

judgment of acquittal despite the 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 belief that she observed defense 

counsel improperly communicating 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 agree 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 hearing 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, although 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 record 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 exposure 
20 

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 the 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 for an evidentiary hearing on his 

ineffective assistance of counsel claims. 

So ordered.