United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-3788

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Reginald Scott Hubbard, *

*

Appellant. *

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Submitted: October 19, 2010

Filed: April 20, 2011

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Before SMITH, COLLOTON, and SHEPHERD, Circuit Judges.

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SMITH, Circuit Judge.

A jury found Reginald Scott Hubbard guilty on one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The

district court sentenced Hubbard to 96 months' imprisonment. On appeal, Hubbard 1

argues that (1) he was deprived of the effective assistance of counsel because his trial

counsel told him that the district court would not allow him to testify in his own

defense and (2) the district court abused its discretion by imposing a sentence that

was substantively unreasonable. For the following reasons, we affirm.

The Honorable James M. Rosenbaum, United States District Judge for the

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District of Minnesota.
I. Background

On June 18, 2008, the Minneapolis Police Department executed a search

warrant at Hubbard's apartment and found Hubbard with his adult son. In searching

the apartment, police found a semi-automatic pistol, a digital scale, and marijuana.

The police arrested him for suspected weapons and narcotics violations. The police

also arrested his son for a suspected narcotics violation. Subsequent to his arrest,

Hubbard admitted, on four separate occasions, to owning the gun. One of these

admissions occurred after police informed himthat they had released his son fromjail

because he had "no connection" to the suspected crimes.

A grand jury indicted Hubbard on one count of being a felon in possession of

a firearm, in violation of §§ 922(g)(1) and 924(a)(2). Hubbard pleaded not guilty and

proceeded to a jury trial. Immediately before the trial started, outside the presence of

the jury, the district court informed Hubbard of his right to testify:

THE COURT: . . . If you wish to testify, if you have a story or you have

something you want the jury to hear from you, nobody can stop you.

Your lawyer cannot stop you and the prosecutor can't and I can't. That

means you don't have to testify if you don't want to, but you absolutely

can if you like, it is purely your choice. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: The decision whether or not for a criminal defendant to

testify in a trial is an important one. I know you will discuss it with your

lawyer. I'm not asking you now what your choice is, I don't care, that's

your privilege. But I wanted to make sure that formally you understood

your rights. Okay?

THE DEFENDANT: Okay.

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Following the close ofthe government's case, Hubbard's trial counsel rested the

defense's case without calling Hubbard to testify. The record reflects that Hubbard did

not voice any objections or otherwise request to testify.

After the jury returned a guilty verdict, Hubbard filed a pro se motion to relieve

his appointed trial counsel and a pro se motion for new trial, in which he alleged,

among other things, that he was denied effective assistance of counsel. The district

court appointed new counsel, who filed a motion for an evidentiary hearing on

Hubbard's claims.

At the evidentiary hearing on Hubbard's motion for new trial, Hubbard's new

appointed counsel stated that Hubbard believed that, during trial, the district court

held a sidebar with Hubbard's trial counsel and the government attorney; after this

sidebar, Hubbard's trial counsel told Hubbard that the court would not allow him to

testify. Hubbard then testified at the hearing. He acknowledged that the court had

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informed him of his right to testify and that he understood that no one could prevent

him from testifying. He also stated that, after the government rested its case, he

informed his trial counsel that he wanted to testify, but his trial counsel informed him

that the court would not allow him to take the stand. In addition, he stated that the

court "told the jury [it] wasshocked" when his trial counsel rested the defense's case.3

When asked, Hubbard could not explain why he did not protest when his trial

attorney rested without calling him to testify. Tammy Pettis, Hubbard's fiancée, also

testified at the hearing. She stated that she was prepared to testify in Hubbard's

A review of the trial transcript does not reveal any record of this alleged bench

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conference. At the evidentiary hearing, the district court stated that it has "never had

a bench conference without a record." Indeed, the trial transcript does reflect two

bench conferences, both of which were unrelated to whether Hubbard could testify

at trial.

No such statement by the district court appears in the trial transcript. 3

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defense, but Hubbard's trial counsel informed her that the district court would not

allow her to testify either.

At a subsequent sentencing hearing, the district court addressed Hubbard's

motion for a new trial, expressly finding Hubbard and his fiancée not credible. The

court then denied Hubbard's motion for a new trial.

At sentencing, the district court first calculated the advisory Sentencing

Guidelines range, explicitly noting that the Guidelines are "effectively advisory." The

court adopted the findings in the presentence investigation report, but it declined the

government's request to impose a four-level enhancement under U.S.S.G.

§ 2K2.1(b)(6) for possessing the gun in connection with another felony offense.

Accordingly, the court found that Hubbard had a total offense level of 24 and a

criminal history category of IV, yielding a Guidelines range of 77 to 96 months.

The district court then allowed Hubbard to speak. During his allocution,

Hubbard primarily attempted to demonstrate that he had never possessed the firearm.

After hearing the government'ssentencing argument, the court sentenced Hubbard to

96 months' imprisonment—the top of the Guidelines range—taking into account his

prior criminality and current mendacity. In addition, the court's judgment

recommended that Hubbard participate in a drug treatment program. 

II. Discussion

Hubbard raises two arguments on appeal. First, he assertsthat he was deprived

of the effective assistance of counsel because his trial counsel told him that the

district court would not allow him to testify in his own defense. Second, he contends

that the district court abused its discretion by imposing a sentence that was

substantively unreasonable. We address each argument in turn.

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A. Ineffective Assistance of Counsel

Hubbard first argues that he was deprived of the effective assistance of counsel

because his trial counsel told him that the district court would not allow him to testify

in his own defense. Although he concedes that the district court informed him of his

right to do so, he claims that his counsel's statement later deprived him of that right.

This ineffectiveness prejudiced him, he asserts, because his testimony was "his only

chance to secure a not guilty verdict" because he needed to explain to the jury why

he had confessed to owning the firearm.

Claims of ineffective assistance of counsel are generally best litigated in

collateral proceedings, such as an action under 28 U.S.C. § 2255. See, e.g., United

States v. Lewis, 483 F.3d 871, 873 n.2 (8th Cir. 2007). "We will consider

ineffective-assistance claims on direct appeal only where the record has been fully

developed, where not to act would amount to a plain miscarriage of justice, or where

counsel's error is readily apparent." United States v. Ramirez-Hernandez, 449 F.3d

824, 827 (8th Cir. 2006). When the defendant raises an ineffective assistance claim

in a motion for new trial, we have, on occasion, found that the trial court developed

a record "sufficient to examine counsel's performance." United States v. Villalpando,

259 F.3d 934, 938 (8th Cir. 2001) (noting that, although the district court did not

conduct a hearing, the court was able to observe trial counsel's "poor" representation

at trial); see also United States v. Williams, 562 F.3d 938, 940–41 (8th Cir. 2009)

(finding a sufficiently developed record when potential trial witnessestestified at the

post-trial hearing); United States v. Williams, 897 F.2d 1430, 1434 (8th Cir. 1990)

(finding a sufficiently developed record when trial counsel and an investigator

testified at a post-trial hearing that they contacted a potential witness whose testimony

would not have affected the outcome of the case).

Here, the district court sufficiently developed the record on Hubbard's

ineffective-assistance-of-counsel claim to enable our review. Hubbard raised his

claim in a motion for new trial, and the district court held an evidentiary hearing on

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the matter. Hubbard admitted that the district court had informed him of his right to

testify at trial and that he understood that no one, including his attorney, could

prevent him from doing so. Nonetheless, Hubbard and his fiancée, Pettis, both

testified that Hubbard's trial counsel told them that the district court would not let

them testify at trial. The district court, however, concluded that Hubbard and Pettis

were not credible, finding that Hubbard's testimony was unsupported or even

contradicted by the record. Although testimony from Hubbard's trial counsel might

have been helpful to conclusively determine whether she made these statements, her

testimony is not necessary given the unreliability of Hubbard's and Pettis'stestimony.

Accordingly, this record is sufficient to evaluate Hubbard's ineffective-assistance

claim.

We review the district court's denial of a motion for new trial based on

ineffective assistance of counsel for abuse of discretion. Villalpando, 259 F.3d at 938.

"In order to establish a claim of ineffective assistance of counsel, the defendant must

show that counsel's performance fell below an objective standard of reasonable

competence, and that the deficient performance prejudiced the defendant." Id. (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)).

Hubbard was not denied the effective assistance of counsel. He has failed to

establish the first prong for an ineffective-assistance-of-counsel claim under

Strickland. Hubbard conceded at the evidentiary hearing that the court fully informed

him of his right to testify. Absent a showing that his trial counsel "unduly influenced

or coerced" him not to testify, Hubbard waived his right to testify by remaining silent

after his trial counsel rested without calling him as a witness. Berkovitz v. Minnesota,

505 F.3d 827, 828 (8th Cir. 2007) (per curiam) (finding that the defendant knowingly

waived her right to testify by remaining silent after her trial counsel rested, even

though her trial counsel strongly advised her not to testify). Hubbard's only evidence

of such influence or coercion was his and Pettis's testimony that his trial counsel told

them that the district court would not let them testify. The district court, however,

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found that their testimony was not credible, a finding that is "virtually unassailable

on appeal." United States v. Bolden, 596 F.3d 976, 982 (8th Cir. 2010) (quotation and

citation omitted). The record supports the district court's finding. Hubbard cites no

evidence to support his claim about a bench conference discussing his ability to

testify or his claim that the court expressed its shock to the jury when the defense

rested without calling Hubbard to testify. Accordingly, the district court did not abuse

its discretion in denying Hubbard's motion for new trial based on ineffective

assistance of counsel.

B. Substantive Reasonableness of the Sentence Imposed

Hubbard next contendsthat the district court abused its discretion by imposing

a substantively unreasonable sentence. He maintainsthat the district court should not

have considered his criminal history when determining his sentence under 18 U.S.C.

§ 3553(a) because the Guidelines had already taken his criminal history into account

when calculating the applicable Guidelines range.

"When we review the imposition of sentences, whether inside or outside the

Guidelines range, we apply a deferential abuse-of-discretion standard." United States

v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (internal quotations and citations

omitted). "We 'must first ensure that the district court committed no significant

procedural error,'" including "'failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence—including an explanation for any deviation

from the Guidelines range.'" Id. (quoting Gall v. United States, 552 U.S. 38, 51

(2007)).

Because Hubbard has not alleged any form of procedural error, "we bypass the

first part of our review and move directly to review the substantive reasonableness

of his sentence." United States v. O'Connor, 567 F.3d 395, 397 (8th Cir. 2009). We

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review the substantive reasonableness of the sentence imposed using a deferential

abuse-of-discretion standard. Feemster, 572 F.3d at 461. In making this

determination, this court must "take into account the totality of the circumstances."

Id. If the sentence imposed is within the advisory Guidelines range, this court "may,

but is not required to, apply a presumption of reasonableness." Gall, 552 U.S. at 51. 

The district court should make "an individualized assessment based on the facts

presented, specifically addressing the defendant's proffered information in its

consideration ofthe 18 U.S.C. § 3553(a) sentencing factors." United States v. Jordan,

573 F.3d 586, 590 (8th Cir. 2009) (internal quotations, citations, and alterations

omitted).

The district court did not abuse its discretion in imposing a sentence at the top

of the applicable Guidelines range. Hubbard cites no authority for his assertion that

a court may not consider a defendant's criminal history separately fromthe calculation

of the applicable Guidelines range. In contrast, the language of § 3553(a) requires a

sentencing court to consider, among other things, "the history and characteristics of

the defendant" and the need "to protect the public from further crimes of the

defendant" along with the applicable sentence recommended by the Guidelines. 18

U.S.C. § 3553(a)(1), (a)(2)(C) and (a)(4)(A). Here, the court considered Hubbard's

criminal history as one of several factors justifying a sentence at the top of the

applicable Guidelines range. The record demonstrates that the court made an

individualized assessment of Hubbard, considering letters, memoranda, and oral

arguments he submitted to the court. Hubbard has not demonstrated that his

within-Guidelines sentence should not be entitled to a presumption ofreasonableness,

and after a careful review of the sentencing record, we conclude that the district court

did not abuse its discretion in sentencing Hubbard to 96 months' imprisonment.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

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