Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify

the Clerk of any formal errors in order that corrections may be made

before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 13, 2004 Decided February 24, 2004

No. 03-3006

UNITED STATES OF AMERICA,

APPELLEE

v.

ADRIAN D. WILLIAMS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 01cr00404-01)

Sandra G. Roland, 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.

John P. Gidez, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Roscoe C. Howard,

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Jr., U.S. Attorney, and John R. Fisher, Elizabeth Trosman,

and Susan B. Menzer, Assistant U.S. Attorneys.

Before: EDWARDS and ROBERTS, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge EDWARDS.

EDWARDS, Circuit Judge: Appellant Adrian Williams was

convicted under 18 U.S.C. § 922(g)(1) of unlawful possession

of a firearm and ammunition by a convicted felon. At

Williams’ trial, police officers testified that they apprehended

Williams on the basis of information furnished by nontestifying individuals that Williams had robbed them at gunpoint earlier in the evening. Despite repeated opportunities

to do so, Williams’ trial attorney never objected to the

admission of these out-of-court statements. In this appeal,

Williams seeks a new trial on the grounds that, because of his

trial attorney’s failure to object to the officers’ testimony, he

was deprived of effective assistance of counsel. Williams

alternatively seeks a remand of his case for resentencing,

alleging that the District Court erred in calculating his base

offense level under the governing sentencing guideline and

that his attorney again provided ineffective assistance by

failing to contest this error.

We agree with Williams that the officers’ testimony should

not have been admitted. On the record at hand, however, we

cannot determine conclusively whether defense counsel’s performance was constitutionally ineffective. We therefore remand the case to the District Court for an evidentiary

hearing on that issue. If the District Court finds that

Williams indeed was denied effective assistance of counsel,

Williams will be entitled to a new trial.

We find no merit in Williams’ challenges to his sentence.

Although the District Court erred in increasing Williams’

base offense level without first ascertaining whether Williams’

previous conviction amounted to a ‘‘crime of violence’’ within

the meaning of the sentencing guidelines, Williams has failed

to demonstrate sufficient prejudice to constitute plain error

or ineffective assistance. Therefore, if his conviction is ultimately sustained on the basis of the verdict now on appeal,

then his sentence will stand.
3

I. BACKGROUND

The events leading to Williams’ arrest and conviction are

largely undisputed. On the evening of October 13, 2001,

officers of the Metropolitan Police Department were dispatched in large numbers to monitor crowds that had assembled for homecoming events at Howard University in Northwest Washington. Around 10:00 p.m., Officers Wayne David

and Keith Gilbert were approached by two men who reported

that they had been robbed at gunpoint earlier in the evening.

The complaining witnesses informed the officers that they

had just seen the men who robbed them in the 700 block of

Euclid Street, but had not approached because they believed

their assailants to be armed. Officer Gilbert set off on foot in

search of the suspects, while Officer David and Officer Kevin

Rachlin, accompanied by the complaining witnesses, drove in

an unmarked car in search of individuals matching the descriptions of the robbers.

As Officers David and Rachlin proceeded north toward the

intersection of Sherman Avenue and Euclid Street, they

observed a group of men cross the street ahead of their police

cruiser. Appellant Adrian Williams was among this group.

One of the complaining witnesses, who was in the vehicle with

the officers, identified ‘‘one of them right there’’ as a participant in the robbery. Trial Tr. at 58 (9/25/02). The officers

accordingly exited their vehicle and ordered the suspects to

stop. Williams ran. While other officers detained the other

suspects, Officer David pursued Williams in the police cruiser.

As Williams rounded the corner from Euclid Street to 9th

Street, Officer David observed him make a tossing motion

toward a grassy lot. The pursuit continued until Williams

was apprehended by other officers who had been called to the

scene.

After Williams was detained, Officer David returned to the

grassy lot at the corner of Euclid and 9th Streets, where he

discovered a loaded .380 caliber semiautomatic handgun.

Crime scene investigators arrived at the scene to recover the

weapon. Although there were several other items and debris

in the grassy lot, investigators did not recover anything other
4

than the handgun. The gun was subsequently test-fired and

found to be operational. Forensic investigators found no

DNA or fingerprints on the gun.

Williams was indicted on November 15, 2001, for possession

of a firearm and ammunition by a convicted felon, in violation

of 18 U.S.C. § 922(g)(1). Although there is no clear indication on the record before us, Williams contends – and the

Government does not dispute – that Williams was never

charged in connection with the armed robbery that allegedly

occurred on the night of October 13.

Williams’ first trial began on June 3, 2002. The District

Court declared a mistrial on June 7, 2002, after the jury failed

to reach a unanimous verdict. A second trial was held on

September 25, 2002. The Government’s evidence consisted

primarily of the testimony of three police officers. Officers

Kevin Rachlin and Keith Gilbert described the background

context of the alleged robbery and subsequent investigation.

Neither had seen Williams with a gun, and neither was with

Officer David when he saw Williams toss an object into the

grassy lot. Officer David testified as to his pursuit of

Williams, stating that he had observed Williams toss an object

from the area of his waistband into the grassy lot. He

acknowledged that he had not seen what the object was, and

he could not describe its size or color. The Government also

introduced expert testimony to the effect that it was difficult

to recover a useful fingerprint from a gun and that the

absence of any fingerprints on the gun recovered on October

13 was not unusual.

Williams introduced no evidence in his defense, though his

attorney attempted to impeach the Government’s witnesses

with prior inconsistent statements. The parties stipulated

that Williams previously had been convicted of a felony

punishable by a term of imprisonment exceeding one year

and that the firearm had traveled in interstate commerce.

The parties also stipulated that no DNA was detected on the

gun or ammunition and that it was generally rare for DNA to

be found on firearms.
5

Of particular relevance to this appeal, the prosecution and

defense stipulated at a hearing prior to Williams’ first trial

that the Government would not introduce any evidence that

the robbery being investigated when Williams was apprehended took place at gunpoint. See Hearing Tr. at 16-17

(5/30/02). The parties agreed that the police officers would

testify that they were in the area investigating ‘‘a robbery but

not a robbery with a gun.’’ Id. at 16. The officers’ testimony

adhered to this agreement at the first trial, which ended in

mistrial after the jury failed to reach a unanimous verdict.

At the second trial, however, the officers repeatedly stated

that Williams and the other suspects were detained on suspicion of armed robbery. For example, Officer Rachlin testified that he became involved in the case when other officers

‘‘asked for our help in a rash of armed robberies that had just

occurred.’’ Trial Tr. at 21 (9/25/02). When he and the other

officers encountered Williams and the other individuals during their investigation of that armed robbery, ‘‘one of the

witnesses TTT stated that was the suspect.’’ Id. at 25. Officer Rachlin further explained that he ‘‘centered on’’ a second

individual in the group, rather than Williams, because ‘‘[w]e

were told that all the suspects in this were armed.’’ Id. at 26.

Similarly, Officer Gilbert testified that the complaining

witnesses had informed the officers that they had just seen

their assailants, but that they ‘‘didn’t want to approach them

because all of them had guns.’’ Id. at 35. He further

testified that he and the other officers decided they needed ‘‘a

group of officers to help us’’ because ‘‘they said it was

multiple guns, multiple people – they said it was multiple

guns, multiple suspects with guns.’’ Id. at 36. While Officer

David refrained from referring to the robbery suspects as

‘‘armed,’’ his testimony on cross-examination confirmed that

Williams and the individuals accompanying him all matched

the complaining witnesses’ description of their assailants.

See id. at 77. Finally, in her rebuttal argument, the prosecutor reminded the jury that the investigating officers believed

the suspects to be ‘‘armed and dangerous.’’ Id. at 148. At no

point did defense counsel ever object to any of these statements.
6

The jury returned a guilty verdict at the conclusion of

Williams’ second trial. Williams was sentenced on January

13, 2003. A pre-sentence report (‘‘PSR’’) calculated Williams’

sentence under § 2K2.1 of the U.S. Sentencing Guidelines.

Under § 2K2.1, Williams’ initial base offense level for a

violation of 18 U.S.C. § 922(g)(1) was 14. Under

§ 2K2.1(a)(4)(A), Williams’ offense level would increase to 20

if Williams had one prior felony conviction for a ‘‘crime of

violence.’’ Williams previously had been convicted of ‘‘robbery,’’ although the PSR indicated that no documents or

other details concerning the robbery conviction were available. The Government asserts in its brief before this court

that this conviction occurred when Williams pled guilty in

1994 to robbing another person at knife point. See Br. for

Appellee at 13 n.8. Although this information did not appear

in the PSR or elsewhere on the record before the District

Court, Williams does not dispute the Government’s characterization of his previous conviction.

Despite the absence of any facts concerning the prior

conviction, the PSR recommended a base offense level of 20.

Given Williams’ criminal history category, the corresponding

guideline range for this offense level was 51 to 63 months.

Upon receipt of the PSR, Williams’ trial attorney submitted

three factual corrections but otherwise lodged no objections.

The District Court adopted the findings and recommendations of the PSR and sentenced Williams to 63 months in

prison, to be followed by three years’ supervised release and

a special assessment of $100. This appeal followed.

II. ANALYSIS

A. Ineffective Assistance of Counsel at Trial

Williams contends that the police officers’ testimony that

non-testifying complaining witnesses claimed that they had

been robbed at gunpoint amounted to inadmissible hearsay

evidence. Although he does not argue that the District Court

erred in failing to exclude this evidence sua sponte, Williams

does claim that his trial attorney’s failure to object to its

admission constituted ineffective assistance of counsel and
7

that he is therefore entitled to a new trial. We agree with

Williams that the testimony was inadmissible and should have

been excluded upon objection. However, the record before

us does not establish conclusively whether defense counsel’s

performance was unconstitutionally deficient or prejudicial.

We therefore follow our general practice and remand the case

for an evidentiary hearing on that issue. See United States v.

Rashad, 331 F.3d 908, 909-10 (D.C. Cir. 2003). If the District

Court finds that Williams received ineffective assistance of

counsel, Williams must be afforded a new trial.

The Sixth Amendment right to counsel ‘‘ ‘is the right to the

effective assistance of counsel.’ ’’ Strickland v. Washington,

466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397

U.S. 759, 771 n.14 (1970)). We analyze Williams’ ineffective

assistance claim under the two-step analysis set forth by the

Supreme Court in Strickland. Williams must demonstrate

first that his trial attorney’s performance was deficient. Id.

at 687. The standard for attorney performance is ‘‘reasonably effective assistance,’’ or ‘‘reasonableness under prevailing professional norms.’’ Id. at 687, 688. These professional

norms require that an attorney ‘‘ ‘inform[ ] himself TTT fully

on the facts and the law.’ ’’ United States v. Loughery, 908

F.2d 1014, 1018 (D.C. Cir. 1990) (quoting ABA Standards for

Criminal Justice 4-3.8, 4-5.1(a) (2d ed. 1980)); see also United States v. Gaviria, 116 F.3d 1498, 1512 (D.C. Cir. 1997).

Because trial counsel must have ‘‘wide latitude TTT in making

tactical decisions,’’ Strickland, 466 U.S. at 689, a reviewing

court must ‘‘determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide

range of professionally competent assistance,’’ id. at 690.

Under the second step of the Strickland analysis, Williams

must show that his attorney’s deficient performance prejudiced the outcome of his case; that is, 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. In the context of a challenge to a criminal

conviction, this standard requires an appellant to demonstrate

that ‘‘there is a reasonable probability that, absent the errors,

the factfinder would have had a reasonable doubt respecting
8

guilt.’’ Id. at 695. Williams need not show that his attorney’s deficient performance ‘‘more likely than not’’ altered the

outcome of the case. Id. at 693. As this court has emphasized, ‘‘Strickland requires reasonable probability, not certainty.’’ Gaviria, 116 F.3d at 1514 (citing Strickland, 466

U.S. at 694). ‘‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’’ Strickland, 466 U.S. at 694.

Where an appellant argues for the first time on direct

appeal that trial counsel’s performance was constitutionally

ineffective, our general practice is to remand the case to the

district court for an evidentiary hearing. See Rashad, 331

F.3d at 909-10 (citing United States v. Fennell, 53 F.3d 1296,

1303-04 (D.C. Cir. 1995)). We will not remand a case, however, if the record conclusively establishes appellant’s entitlement to relief. See id. at 910.

In this case, Williams argues that he was denied the

effective assistance of counsel when his trial attorney repeatedly failed to object to the disputed testimony at his

second trial – testimony that the parties had agreed would

not be admitted and that was legally inadmissible as hearsay.

There is no doubt that the police officers’ repeated references

to armed robbery at the second trial constituted a clear

breach of the parties’ pre-trial agreement. The same attorneys participated in Williams’ second trial as in the first trial,

and the Government does not claim that the parties’ agreement had been rescinded or altered in any way between the

first and second trials. Nevertheless, the evidence that

Williams was suspected of armed robbery came into the

record in various forms repeatedly throughout the second

trial. We agree with Williams that the testimony was inadmissible.

As a general matter, the Federal Rules of Evidence prohibit the admission of an out-of-court statement offered in evidence to prove the truth of the matter asserted. See FED. R.

EVID. 801, 802. Such a statement may be admitted to serve a

non-hearsay purpose, however, such as elucidating a speaker’s or a listener’s state of mind, see United States v. Sesay,
9

313 F.3d 591, 599 (D.C. Cir. 2002), or providing background

information, see United States v. Gatling, 96 F.3d 1511, 1524

(D.C. Cir. 1996). As with all evidence, such a statement,

when offered for a permissible non-hearsay purpose, must be

relevant to a ‘‘fact TTT of consequence’’ in the case. FED. R.

EVID. 401; see also Sesay, 313 F.3d at 599-600; United States

v. Evans, 216 F.3d 80, 87 (D.C. Cir. 2000). Moreover, such a

statement may be excluded, even if relevant, if its probative

value is substantially outweighed by the danger of unfair

prejudice. FED. R. EVID. 403; see also Evans, 216 F.3d at 87-

89.

This court had occasion to consider a similar hearsay issue

in United States v. Evans, 216 F.3d 80 (D.C. Cir.), cert.

denied, 531 U.S. 971 (2000). In that case, a government

witness testified regarding the origins of an FBI undercover

operation. Id. at 84. In recounting why the FBI was

investigating the defendant, the witness stated that the FBI

had learned from an informant that the defendant was involved in drug trafficking. Id. This court held that the

testimony constituted inadmissible hearsay, reasoning that

the testimony was relevant only if offered to prove the truth

of the matter asserted. See id. at 85. The Evans court

rejected the argument that the testimony could be admitted

to provide ‘‘background’’ information, because whatever minimal value the testimony had for that purpose was outweighed

by the danger that the jury would consider the evidence for

its hearsay purpose. See id. at 87-89; see also Sesay, 313

F.3d at 599 (excluding testimony regarding an out-of-court

statement because its only relevance was for its truth and

because any value it may have had as background was

substantially outweighed by the danger of prejudice).

Under Evans, the officers’ testimony at Williams’ second

trial was inadmissible. To the extent that the testimony was

relevant to a fact of consequence in the trial – whether

Williams possessed a gun – the testimony is hearsay because

it is relevant only for its truth, i.e., that Williams possessed a

gun earlier in the evening during the commission of an armed

robbery. See Evans, 216 F.3d at 85; see also Sesay, 313 F.3d

at 599. To the extent that the testimony was offered as
10

‘‘background’’ information, the testimony is inadmissible because its considerable prejudicial effect substantially outweighed its minimal value as background. See Evans, 216

F.3d at 87-89; see also Sesay, 313 F.3d at 599. The prosecution easily could have explained the context of the events of

October 13 without referring to the robbery suspects as

armed; indeed, the prosecutor expressly agreed to do so

prior to the first trial. The Government attempts to distinguish Evans on the grounds that the officers’ testimony in

this case did not single out Williams as the sole suspect in the

armed robbery. This argument fails because, even if there

were additional suspects, the officers clearly testified that all

the suspects were considered to be armed on the basis of the

complaining witnesses’ statements. See, e.g., Trial Tr. at 26,

35, 36.

The Government’s reliance on United States v. Gatling, 96

F.3d 1511 (D.C. Cir. 1996), and similar cases is misplaced.

Those cases permitted the admission of hearsay testimony for

background purposes in situations where that testimony could

not reasonably be seen to prejudice the defendant. See id. at

1524 (finding the hearsay testimony to be ‘‘harmlessly cumulative’’); United States v. Beck, 122 F.3d 676, 682 (8th Cir.

1997) (finding any possible error in admitting the hearsay to

be harmless). Indeed, the Evans court specifically distinguished Gatling as a case where hearsay was admissible for

background purposes only ‘‘where the evidence [was] on an

uncontroverted matter, where hearsay [was] the most efficient means of transmitting it, and where there [was] little

chance of prejudice to the defendant.’’ Evans, 216 F.3d at 87.

Where those conditions are not met, ‘‘the government must

prove ‘background’ the same way it would any other set of

relevant facts,’’ i.e., without the use of hearsay testimony. Id.

The police officers’ testimony at Williams’ second trial was

therefore inadmissible under Evans.

Unlike Gatling, the officers’ testimony in this case presented a clear danger of prejudice to Williams’ defense. Aside

from Officer David’s observation of Williams tossing an unidentified object into the grassy lot, there was no evidence

connecting Williams to the handgun. At Williams’ first trial,
11

the jury could not reach a unanimous verdict on the strength

of this evidence. It was only at the second trial that the

Government’s case, bolstered by the inadmissible statements

implicating Williams in armed robbery, persuaded the jury

beyond a reasonable doubt that Williams indeed possessed

the handgun. Yet, despite the obviously damaging nature of

these statements, and despite having multiple opportunities to

do so, defense counsel never objected or took any other steps

to prevent the admission of this testimony. Nor did she take

any steps to mitigate its effect once it came into the record.

On remand, the District Court must consider whether there

is any plausible explanation for defense counsel’s continued

failure to object to the inadmissible testimony. We will leave

this issue for the District Court to address in the first

instance on remand. It is clear that defense counsel should

have been aware of the rules of hearsay generally and of the

Evans decision in particular. See Gaviria, 116 F.3d at 1512

(finding Strickland’s first prong satisfied where the defendant’s attorney ‘‘should have been aware’’ of a recent decision

and its implications for the defendant’s case). If, after further development of the record, the District Court finds that

the attorney’s failure to object reflected ignorance of the law,

rather than a reasonable strategic decision within ‘‘the wide

range of professionally competent assistance,’’ Strickland, 466

U.S. at 690, then the attorney’s performance must be deemed

deficient, and Williams will have satisfied the first element of

the Strickland analysis.

With respect to Strickland’s prejudice requirement, the

record before us suggests that trial counsel’s failure to object

was prejudicial to Williams’ defense. However, it is for the

District Court to develop the record further and determine in

the first instance whether the admission of this evidence was

sufficiently prejudicial as to ‘‘undermine confidence in the

outcome’’ of Williams’ trial. Strickland, 466 U.S. at 694.

We therefore remand Williams’ case for an evidentiary

hearing on the effectiveness of his trial attorney. If the

District Court determines that Williams’ trial counsel was
12

ineffective under Strickland, Williams must be afforded a new

trial.

B. Sentencing Issues

Williams further contends that the District Court erred in

calculating his base offense level under the Sentencing Guidelines and that his attorney was constitutionally ineffective by

failing to object to this error. We find no merit in these

claims. Although the District Court clearly erred by increasing Williams’ base offense level without first ascertaining

whether Williams’ previous conviction of robbery constituted

a ‘‘crime of violence’’ within the meaning of the Sentencing

Guidelines, Williams fails to demonstrate sufficient prejudice

to satisfy either the plain error or ineffective assistance

standard.

A conviction under 18 U.S.C. § 922(g)(1) for unlawful possession of a firearm or ammunition by a convicted felon is

sentenced pursuant to § 2K2.1 of the Sentencing Guidelines.

See U.S. SENTENCING GUIDELINES MANUAL (‘‘U.S.S.G.’’) app. A

(2001). Because Williams is a ‘‘prohibited person’’ under 18

U.S.C. § 922(g) by virtue of his prior felony conviction, his

base offense level should be at least 14 under § 2K2.1(a)(6) of

the Guidelines. Section 2K2.1(a)(4)(A), however, calls for a

base offense level of 20 if the defendant previously had

sustained one felony conviction for a ‘‘crime of violence.’’

U.S.S.G. § 2K2.1(a)(4)(A) (2001). For purposes of this Guideline, ‘‘crime of violence’’ is defined in accordance with

§ 4B1.2(a) and the accompanying application notes. See

U.S.S.G. § 2K2.1, cmt. n.5 (2001). Under § 4B1.2(a), the

term ‘‘crime of violence’’ means

any offense under federal or state law, punishable by

imprisonment for a term exceeding one year, that –

(1) has as an element the use, attempted use, or

threatened use of physical force against the person

of another, or (2) is burglary of a dwelling, arson, or

extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential

risk of physical injury to another.
13

U.S.S.G. § 4B1.2(a) (2001). The corresponding application

note states that ‘‘crime of violence’’ includes, inter alia,

‘‘robbery.’’ U.S.S.G. § 4B1.2, cmt. n.1 (2001).

This court held in United States v. Mathis, 963 F.2d 399

(D.C. Cir. 1992), that the statutory definition of ‘‘robbery’’

under District of Columbia law includes offenses that do not

have as an element the use or threatened use of physical

force against another person. Id. at 408-09. A conviction of

‘‘robbery’’ therefore does not automatically constitute a ‘‘violent felony’’ for purposes of the sentence enhancement provision in 18 U.S.C. § 924(e). See id. at 409 (discussing Taylor

v. United States, 495 U.S. 575 (1990)). In United States v.

Hill, 131 F.3d 1056 (D.C. Cir. 1997), the court extended this

holding to the definition of ‘‘crime of violence’’ under

§ 2K2.1(a) of the Guidelines. Id. at 1061-65.

To determine whether a prior conviction constitutes a

‘‘crime of violence,’’ the sentencing court must consider the

statutory definition of the offense of conviction, and not the

particular circumstances under which that offense was committed. Id. at 1062 (citing Taylor, 495 U.S. at 600-02). As in

Mathis, Hill held that where the statutory definition of an

offense includes non-violent crimes, a sentencing court must

review the indictment or jury instructions to determine

whether a prior conviction was a ‘‘crime of violence’’ within

the meaning of the Guidelines. See id. In the special case

where a defendant pleads guilty to a lesser included offense

rather than the indicted offense, and where no jury instructions are available, a sentencing court must examine other

documents in the record, such as the judgment of conviction,

the plea agreement or other statement by the defendant on

the record, a presentence report adopted by the court, or the

factual findings of the sentencing judge. See id. at 1064-65.

In this case, Williams’ PSR indicates that Williams was

convicted of ‘‘robbery’’ in the District of Columbia Superior

Court in 1994, an offense for which he received a sentence of

30 to 90 months. No other information about this conviction

appears on the record before us, save for the representations

made by the parties in their briefs and at oral argument.
14

Nevertheless, the PSR recommended, and the District Court

agreed, that Williams’ base offense level under § 2K2.1 of the

Guidelines should be 20. Had the District Court examined

the record and found no evidence that Williams’ previous

conviction constituted a ‘‘crime of violence,’’ his base offense

level would have been only 14, resulting in a sentence range

of 27 to 33 months, instead of the 51 to 63 months that the

PSR recommended and the District Court adopted.

Under Hill and Mathis, the District Court clearly erred in

adopting the base offense level of 20 without confirming that

Williams’ 1994 robbery conviction constituted a ‘‘crime of

violence.’’ Williams did not object to this error, however,

either upon receipt of the PSR or at sentencing before the

District Court. We therefore review the sentencing judge’s

decision only for plain error. See FED. R. CRIM. P. 52(b);

United States v. Joaquin, 326 F.3d 1287, 1290 (D.C. Cir.

2003). We find that Williams has failed to demonstrate the

prejudice necessary to satisfy plain error review.

In the context of sentencing errors, the prejudice requirement under the plain error standard is ‘‘slightly less exacting

than it is in the context of trial errors.’’ United States v.

Saro, 24 F.3d 283, 287 (D.C. Cir. 1994). Nonetheless, a

defendant must still demonstrate ‘‘a reasonable likelihood

that the sentencing court’s obvious errors affected his sentence.’’ Id. at 288. Williams cannot prevail, even under the

relaxed prejudice standard, merely by asserting that there

was error. Rather, the burden remains squarely on Williams

to provide the court with some basis for suspecting that a

reduction in his sentence is sufficiently likely to justify a

remand. See id. at 292. Our cases do not require Williams

to proffer new evidence establishing conclusively that his

sentence would be different absent the sentencing court’s

error; he need not even demonstrate that it is ‘‘more likely

than not’’ that his sentence will change. See id. But he must

offer some reason to suspect that the District Court’s error

likely resulted in an incorrect sentence. See United States v.

Childress, 58 F.3d 693, 724 (D.C. Cir. 1995) (‘‘Under Saro,

plain error can be established where the trial court fails to

make the requisite findings and it is reasonably likely that it
15

would have made a different attribution if it had made the

proper findings.’’) (emphasis added). Williams fails to carry

this burden.

There is simply nothing before us to suggest any likelihood

that the District Court would have assigned Williams a

different base offense level had it first conducted the proper

inquiry into the 1994 robbery conviction. To the contrary,

the only indications on this sparse record – including the

briefs to this court and the parties’ representations at oral

argument – suggest that, in fact, Williams’ sentence would

not be reduced. Thus, we cannot say that Williams has

satisfied his burden of demonstrating a ‘‘reasonable likelihood’’ that the District Court’s error affected his sentence.

Saro, 24 F.3d at 288.

For the same reason, Williams fails to satisfy the prejudice

requirement of Strickland’s ineffective assistance analysis.

See id. at 287 (noting the ‘‘natural analogy’’ between claims of

plain error and claims of ineffective assistance and stating

that ‘‘the Strickland formulation of ‘prejudice’ comes quite

close to what we have required in plain-error cases’’); see

also United States v. Hall, 326 F.3d 1295, 1301 & n.10 (D.C.

Cir. 2003) (relying on the same prejudice analysis to reject

both plain error and ineffective assistance claims concerning

an alleged sentencing error). Even assuming arguendo that

Williams’ attorney erred in failing to object to the base

offense level, such error does not amount to ineffective assistance of counsel where Williams has failed to present any

reason why that error should ‘‘undermine [our] confidence in

the outcome’’ of his sentencing proceeding. Strickland, 466

U.S. at 694.

III. CONCLUSION

We remand Williams’ case to the District Court for an

evidentiary hearing on the question of whether Williams was

denied the effective assistance of counsel when his trial

attorney failed to object to the admission of damaging hearsay testimony. Should the District Court find that Williams
16

satisfies the requirements of an ineffective assistance claim,

Williams will be entitled to a new trial.

We find no merit in Williams’ challenge to his sentence.

Therefore, if his conviction is ultimately sustained on the

basis of his second trial, then his sentence will stand.