Appeal from the United States District Court for the District of Columbia (No. 97cr00292–01)
Before: Edwards, Garland, and Roberts, Circuit Judges.
The opinion of the court was delivered by: Garland, Circuit Judge
Alfred Eli, who is serving a 121-month prison sentence, contends that his counsel was ineffective in failing to argue that the substance he distributed was not ''crack cocaine,'' but rather a form of cocaine for which a lower sentence should have been imposed. Because we affirm the district court's finding that Eli did, in fact, distribute crack cocaine, we conclude that he suffered no prejudice as a result of his counsel's alleged failure.
On July 17, 1997, a federal grand jury issued a three-count indictment charging Eli with violating 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii) by distributing 50 grams or more of ''a mixture and substance containing a detectable amount of cocaine base, also known as crack,'' to an undercover police officer on three separate occasions: March 6, 1997 (Count One); March 13, 1997 (Count Two); and April 2, 1997 (Count Three).*fn1 On December 12, 1997, Eli entered a plea of guilty to Count One of the indictment pursuant to a written plea agreement. Under the agreement, Eli conceded, inter alia, that he: (1) distributed more than 50 grams of ''Cocaine Base ('crack'), in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A)(iii)''; (2) was accountable ''for at least 150 but less than 500 grams of cocaine base, also known as 'crack' '' for purposes of the United States Sentencing Guidelines; and (3) was subject to a ''possible penalty of not less than ten years'' in prison. Plea Agreement ¶¶ 1, 2 (Dec. 12, 1997). In return, the government agreed to dismiss the indictment's two remaining counts and not to oppose Eli's request for a 3-level reduction in his guidelines offense level for acceptance of responsibility.
The district court conducted the plea hearing required by Rule 11 of the Federal Rules of Criminal Procedure and accepted Eli's guilty plea. In the course of the hearing, Eli agreed that: he had read the charges in the indictment with his attorney; he understood those charges; he realized that he faced a mandatory minimum of ten years in prison; and he had, in fact, distributed crack cocaine. Eli assented to the final point several times. See, e.g., 12/12/97 Tr. at 6, 9, 16-20. Based on these admissions, the district court adjudged Eli guilty of ''Count One of the indictment charging unlawful distribution of cocaine base, or crack on March 6th, 1997.'' Id. at 21.
The court sentenced Eli on April 2, 1998. It found that Eli's offense -- distributing ''between 150 and 500 grams of crack cocaine'' -- corresponded to a guidelines offense level of 34. 4/2/98 Tr. at 9; see U.S.S.G. § 2D1.1(c)(3) (drug quantity table) (1997). The court decreased that offense level by 3 because Eli had accepted responsibility for his crime by pleading guilty, resulting in an adjusted offense level of 31. See U.S.S.G. § 3E1.1(a)-(b). Combined with Eli's criminal history category of II, this adjusted offense level yielded a guidelines sentencing range of 121-151 months in prison. See U.S.S.G. ch. 5, pt. A (sentencing table). The court then sentenced Eli to 121 months' incarceration -- the bottom of the guidelines range and just one month more than the plea agreement had identified as the statutory minimum for the offense. Plea Agreement ¶ 1; see 21 U.S.C. § 841(b)(1)(A)(iii). Although the court advised Eli of his right to appeal, neither Eli nor his counsel filed a notice of appeal within the 10-day period fixed by Federal Rule of Appellate Procedure 4(b)(1)(A).
A year later, on April 5, 1999, Eli filed a pro se motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255, on the ground that his defense counsel had been constitutionally ineffective. The district court appointed an attorney to represent Eli, who supplemented Eli's initial motion and filed two additional motions. As supplemented, Eli's motion charged that his original counsel had been ineffective by failing to note a timely appeal from his conviction, by failing to advise Eli that there was an issue regarding whether the substance he sold was ''crack cocaine'' within the meaning of the Sentencing Guidelines, and by failing to contest drug identity at sentencing. The additional motions, based on the Supreme Court's opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000), contended that: (1) if the court were to order a resentencing, the government should be required to prove that Eli sold crack cocaine beyond a reasonable doubt; and (2) the statute under which Eli was sentenced, 21 U.S.C. § 841, is unconstitutional.*fn2
Following an evidentiary hearing conducted on May 30 and 31, 2001, the district court granted Eli's § 2255 motion with respect to his counsel's failure to file a timely notice of appeal, but denied all of Eli's other claims. See United States v. Eli, 227 F. Supp. 2d 90 (D.D.C. 2002). In particular, the court found, ''beyond a reasonable doubt,'' that Eli distributed ''crack cocaine.'' Id. at 101. Pursuant to 28 U.S.C. § 2253, the court issued a certificate of appealability with respect to the denied claims, and Eli filed a timely notice of appeal.*fn3
In this court, Eli seeks reversal of the district court's denial of his claims that his original counsel was constitutionally ineffective because: ''(1) he advised defendant to plead guilty to one count of the indictment without advising him that 'cocaine base' and 'crack' were not the same thing or that the government had to prove that the substance was 'crack,' and (2) [he] made no attempt to raise this issue'' at sentencing. Appellant's Br. at 6. Notwithstanding the first claim of ineffective assistance, however, Eli most emphatically does not want his plea vacated.*fn4 To the contrary, the only prejudice he asserts is the length of his sentence, and the only relief he seeks is a lower sentence to reflect the fact that the substance he distributed was not ''crack.'' Id. at 25.*fn5
We consider ineffective assistance of counsel claims pursuant to the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984). ''First, the defendant must show that counsel's performance was deficientTTTT Second, the defendant must show that the deficient performance prejudiced the defense.'' 466 U.S. at 687. The latter prong requires the defendant to demonstrate 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; see Glover v. United States, 531 U.S. 198, 200 (2001) (holding that ''if an increased prison term did flow from an error the petitioner has established Strickland prejudice''). As both parties agree, we review the factual findings that underpin a district court's legal conclusions regarding ineffective assistance only for clear error. See United States v. Taylor, 339 F.3d 973, 978 (D.C. Cir. 2003); United States v. Askew, 88 F.3d 1065, 1070 (D.C. Cir. 1996).
Although the government raises a multitude of arguments in opposition to Eli's claim of ineffective assistance, the district court has thoughtfully provided a simple and direct route to resolving this appeal. After an evidentiary hearing, the court found that the substance Eli distributed was in fact ''crack cocaine.'' 227 F. Supp. 2d at 101. If that finding survives review, Eli cannot satisfy the Strickland test because, even if his counsel's performance were deficient (a point we do not address), Eli cannot ...