                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-26-2000

United States v. Baird
Precedential or Non-Precedential:

Docket 99-1305




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Filed June 26, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1305

UNITED STATES OF AMERICA

v.

JOHN BAIRD,
       Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 95-cr-00092-1)
District Judge: Honorable Robert S. Gawthrop, III

Argued April 24, 2000

Before: BECKER, Chief Judge, WEIS and
OAKES,* Circuit Judges.

(Filed: June 26, 2000)

       George H. Newman, Esquire
        (ARGUED)
       Newman & McGlaughlin, P.C.
       834 Chestnut Street, Suite 206
       Philadelphia, Pennsylvania 19107

Attorney for Appellant John Baird



_________________________________________________________________
*The Honorable James L. Oakes, United States Circuit Judge for the
United States Court of Appeals for the Second Circuit, sitting by
designation.
       Michael R. Stiles, Esquire
        United States Attorney
       Walter S. Batty, Jr., Esquire
        Assistant United States Attorney
        Chief of Appeals
       William B. Carr, Jr., Esquire
        (ARGUED)
        Assistant United States Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, Pennsylvania
        19106-4476

       Attorneys for Appellee
       United States of America

OPINION OF THE COURT

WEIS, Circuit Judge.

In this section 2255 case, defendant contends that his
trial counsel erred in failing to object at sentencing to the
use of incriminating admissions made as part of a
cooperation agreement with the government and immunized
by U.S.S.G. S 1B1.8. We conclude that the government had
promised that such information would not be used to
increase the defendant's punishment. Consequently, that
material should not have been factored into the sentence.
Whether counsel's inaction at sentencing constitutes
ineffective assistance requires a hearing. Accordingly, we
will remand for that purpose.

Defendant John Baird pleaded guilty to a Hobbs Act
robbery, 18 U.S.C. S 1951; conspiracy to violate civil rights,
id. S 241; and obstruction of justice. Id. S 1503. These
charges grew out of the defendant's misconduct as an
officer in the Philadelphia Police Department. After he
became aware that he was under investigation, defendant
cooperated extensively with federal authorities in exposing
corruption in the department. A more comprehensive review
of the facts underlying this case may be found in the
defendant's direct appeal. United States v. Baird, 109 F.3d
856 (3d Cir. 1997).

                                  2
At sentencing, despite the fact that the prosecution had
filed a section 5K1.1 motion recommending a downward
departure, the court departed upwards from the guideline
range of 87-108 months to 156 months. The sentence
reached was based, in part, on conduct underlying counts
that had been dismissed pursuant to a plea bargain, as
well as on information provided by defendant as he had
agreed.

At the sentencing hearing, counsel argued that the
defendant's own statements had unfairly resulted in a
higher guideline calculation, but she did not clearly
challenge the use of that material. Neither did she object on
the basis of U.S.S.G. S 1B1.8, which generally immunizes
from sentencing the consideration of self-incriminating
information provided pursuant to an applicable cooperation
agreement.

On direct appeal, defendant contended that the District
Court erred at sentencing by considering activity underlying
the dismissed counts. We affirmed, concluding that such
conduct could support the upward departure. Baird, 109
F.3d at 863. As a result of post-sentencing assistance, the
defendant's sentence was later reduced to 126 months.

Defendant then filed the present motion under 28 U.S.C.
S 2255, asserting that his trial counsel had been ineffective
by failing to challenge the adverse use of information that,
he argued, was immunized by his cooperation agreement
and section 1B1.8. The District Court denied the motion,
noting that in the early stages of his cooperation, defendant
had attempted to falsely exculpate a fellow officer. Although
the cooperation agreement "would have kept all his self-
incriminating statements out [so] they could not have been
used against him," the court concluded that the defendant's
attempts to shield a co-conspirator "breached the deal" and
"rendered it null." Accordingly, reasoned the District Court,
section 1B1.8(a) was never triggered because the
defendant's "own actions . . . caused the agreement to self-
destruct."

In this appeal, defendant renews his contention that the
government promised that the self-incriminating material
he disclosed would not be used for sentencing purposes.

                               3
The government counters that it made no such
commitment, and in the alternative, contends that
defendant breached any purported agreement.

I.

To prevail in his contention that counsel was ineffective,
defendant must show both deficiency in performance and
prejudice. Strickland v. Washington, 466 U.S. 668, 700
(1984). The "deficiency" step asks whether counsel's
conduct "fell below an objective standard of
reasonableness" viewed as of the time it occurred. Id. at
688, 690; see also United States v. Gray, 878 F.2d 702, 711
(3d Cir. 1989). The "prejudice" prerequisite asks whether
"there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at 694; see also
United States v. Headley, 923 F.2d 1079, 1083 (3d Cir.
1991).

As a threshold matter, the court must determine whether
the underlying claim was meritorious. United States v.
Mannino, ___ F.3d ___, No. 98-1748, 2000 WL 583645, at *3
(3d Cir. May 15, 2000). The underlying facts are reviewed
for clear error, and are subject to independent judgment
"on whether the facts thus found constitute constitutionally
ineffective assistance of counsel." Government of the Virgin
Islands v. Weatherwax, 77 F.3d 1425, 1430-31 (3d Cir.
1996).

An understanding of the defendant's section 2255 motion
requires a review of the proceedings leading up to his
sentencing. In early December 1994, having learned that he
was about to be indicted for conspiracy to violate civil
rights, defendant offered to cooperate with the government.
Unrepresented by counsel, he signed a brief note prepared
by an assistant United States Attorney indicating that "no
statements made by you, or other information provided by
you during the `off-the-record' proffer, will be used directly
against you in any criminal case."

Two days later, on December 9, 1994, and still
unrepresented, he signed a more formal letter drafted by
the United States Attorney's Office. The letter acknowledged

                               4
the defendant's desire to cooperate and stated that the
earlier "off-the-record" note no longer applied and "[f]rom
now on," information furnished was "on the record, and
could be admitted against you in the future if you failed to
plead guilty" to a Hobbs Act robbery and a conspiracy to
violate civil rights. The letter also noted that cooperation
could result in a governmental motion for a downward
departure.

In the month following, defendant fabricated evidence to
exculpate a co-conspirator, Thomas G. DeGovanni. On
January 28, 1995, defendant admitted this deception, and
later aided the government in obtaining evidence
incriminating DeGovanni. There is no evidence or
suggestion that defendant took further steps to improperly
exculpate himself or others, or to minimize his role in the
offenses.

At some point not disclosed by the record, defendant
retained counsel. On February 28, 1995, a multi-count
indictment was returned against defendant, DeGovanni,
and others. In addition to the two offenses enumerated in
the December 9 letter, the indictment included four other
charges against defendant, including a count for
obstruction of justice stemming from his attempted cover-
up of DeGovanni.

With defendant now represented, the parties entered into
a more detailed, formal plea agreement on March 30, 1995.
Defendant agreed to cooperate by disclosing information
and testifying if necessary. He also agreed that if he
committed any additional crimes, the government could
avoid the agreement. In due course, defendant pleaded
guilty to counts alleging violations of the Hobbs Act,
conspiracy, and obstruction of justice. A presentence report
was prepared.

In moving for a downward departure at sentencing, the
assistant United States Attorney stated that defendant had
"demonstrated a remarkable degree of both candor and
recall." Moreover, declared the prosecutor, it was "difficult
to conceive that a similarly situated defendant could
provide a more substantial level of cooperation in the
development of an historical case of police corruption." The

                               5
sentencing judge was nevertheless struck by the
extraordinary disruption of the criminal justice system
caused by the defendant's conduct, and decided to depart
upward. Acknowledging the government's section 5K1.1
motion, the judge stated that he was giving an "implicit"
downward departure in that he "would be hitting
[defendant] harder . . . were it not for the cooperation."

In its response to the section 2255 motion in the District
Court, the government conceded that the defendant's
"sentencing guideline calculation and [the District Court's]
determination to depart upward were based upon matters
which included in large part information obtained directly
from [defendant]." The presentence report recites in
considerable detail numerous instances in which defendant
and his co-conspirators "participated in illegal searches of
individuals and property, made illegal entries into premises,
made illegal detentions, used unwarranted force and threat
of force against detainees and stole money and property
. . . ."

The probation officer relied on these incidents in
recommending upward departures, stating that the
defendant's actions had significantly disrupted
governmental functions, had led to the imprisonment of
many individuals in violation of their civil rights, and had
caused many convictions to be overturned. The government
alluded to such matters in its sentencing memorandum,
stating that "the District Attorney's Office was left in the
unenviable position of having to concede the vacating of
convictions of literally dozens of drug dealers." The
memorandum noted the irony that the defendant's
cooperation had widened the scope of culpable conduct
before the court.

The District Court considered such incidents in reaching
its sentencing decision, finding that there had been "many
significant disruptions of many Governmental functions,"
and that "many of these illicit searches" were later
overturned.

II.

In the defendant's direct appeal, we held that evidence
underlying dismissed counts was properly considered in the

                                6
sentencing process. Baird, 109 F.3d at 863. The question
here is quite different and is based on U.S.S.G.S 1B1.8, a
guideline provision that excludes certain information from
a court's consideration of the sentence to be imposed.

Traditionally, judges exercised wide discretion over the
source and type of material used to determine punishment.
Williams v. New York, 337 U.S. 241, 246 (1949). This broad
authority was codified in 18 U.S.C. S 3577, later
renumbered as 18 U.S.C. S 3661, which states that "[n]o
limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted
of an offense which a court of the United States may receive
and consider for the purpose of imposing an appropriate
sentence." This language is quite broad and facially, would
appear to bar redaction of information furnished by a
cooperating defendant.

In the Sentencing Reform Act of 1984, however, Congress
subsequently established the United States Sentencing
Commission and guideline system, 28 U.S.C. SS 991,
994(a)(1), and directed that certain factors not be included
in sentencing calculations. Id. S 994(d), (e). It also directed
that the Commission pay "particular attention" to
"providing certainty and fairness in sentencing." Id. S 994(f).
Among those factors which were to be used to reduce a
sentence, the statute listed "a defendant's substantial
assistance" to the government. Id. S 994(n). Guidelines
section 1B1.8, which ensures that cooperating witnesses
generally do not face increased sentences because of their
cooperation, thus satisfies the mandate in section 994(n)
that, where appropriate, substantial assistance be rewarded
by a reduced sentence.

As an additional phase of the sentencing legislation, 18
U.S.C. S 3553(b) provides that aggravating or mitigating
factors not taken into account by the Sentencing
Commission may be used in determining an appropriate
sentence. See also Williams v. United States, 503 U.S. 193,
200 (1992) (noting that the sentencing court may not
depart based "on a factor that the Commission has
expressly rejected as an appropriate ground for departure").
When read in conjunction with that provision, section 3661
is thus a "safety net . . . . mak[ing] available for sentencing

                                7
any relevant information not considered by the guidelines."
United States v. Fairman, 947 F.2d 1479, 1482 (11th Cir.
1991). As we stated in United States v. Bruno , 897 F.2d
691, 695-96 (3d Cir. 1990), the two "sections are to operate
in harmony," and information of the type encompassed by
section 3661 is subject to the limitations of section 3553(b).
In short, reading section 3661 together with the other
provisions of the Sentencing Reform Act, including the
requirements specifically articulated by Congress, leads us
to conclude that U.S.S.G. S 1B1.8, while limiting the
otherwise-comprehensive language of section 3661, is
enforceable.

We turn then to the guideline at issue. Section 1B1.8(a)
states:

       Where a defendant agrees to cooperate with the
       government by providing information concerning
       unlawful activities of others, and as part of that
       cooperation agreement the government agrees that self-
       incriminating information provided pursuant to the
       agreement will not be used against the defendant, then
       such information shall not be used in determining the
       applicable guideline range, except to the extent
       provided in the agreement.

U.S.S.G. S 1B1.8(a).

There are several caveats to the general rule. Immunity
shall not apply "in the event there is a breach of the
cooperation agreement by the defendant." Id . S 1B1.8(b)(4).
Other exceptions include information "known to the
government prior to entering into the cooperation
agreement," id. S 1B1.8(b)(1), and information used "in
determining whether, or to what extent, a downward
departure from the guidelines is warranted . . . under
S5K1.1." Id. S 1B1.8(b)(5). As a corollary, however, the
Commission's policy is that self-incriminating information
"shall not be used to increase the defendant's sentence
above the applicable guideline range by upward departure."
Id. S 1B1.8 applic. n.1. The ban on the use of incriminatory
evidence applies not only to government attorneys, but also
to probation officers in the preparation of presentence
reports. Id. S 1B1.8 applic. n.5; see also United States v.
Fant, 974 F.2d 559, 564 (4th Cir. 1992).

                               8
Courts have set aside sentences based on incriminating
information obtained from a defendant where there were
explicit references to section 1B1.8 in the plea or
cooperation agreements. United States v. Washington, 146
F.3d 219, 220, 223 (4th Cir. 1998). In other cases, the
existence or scope of a cooperation agreement was at issue.
At a minimum, the court must find an agreement that 1)
defendant will cooperate "by providing information
concerning the unlawful activities of others"; and 2) the
government will not use the self-incriminating information
provided thereto against defendant. United States v. Evans,
985 F.2d 497, 499 (10th Cir. 1993).

A failure to be explicit or to cite to section 1B1.8 will not
by itself vitiate a purported cooperation agreement. In
United States v. Shorteeth, 887 F.2d 253 (10th Cir. 1989),
the government had promised not to institute additional
prosecutions based on information received from the
defendant. The court concluded that this agreement
embodied an implicit promise not to use that evidence in
calculating the sentencing range, stating that "the language
and spirit of Guidelines S 1B1.8 require the agreement to
specifically mention the court's ability to consider
defendant's disclosures during debriefing in calculating the
appropriate sentencing range before the court may do so."
Id. at 257.

But where an agreement does not embrace immunizing
consequences, courts will not read them in. See United
States v. Ykema, 887 F.2d 697, 699 (6th Cir. 1989)
(concluding that mere promise that "no additional charges"
would be brought did not preclude sentence based on drug
quantity higher than that stipulated in plea agreement). But
cf. United States v. Kinsey, 917 F.2d 181, 184 (5th Cir.
1990) (although promise not to prosecute did not appear to
be ban on use of self-incriminating material, court accepted
the parties' mutual understanding that agreement
incorporated such a promise).

Similarly, where a cooperation arrangement exists, but
clearly limits the boundaries of immunity, courts are chary
of expanding upon the parties' clear intentions. See United
States v. Fontana, 50 F.3d 86, 87-88 (1st Cir. 1995)
("single, limited[ ] promise" of immunity for evidence of

                               9
amount of counterfeit money did not extend to information
on cohort's identity); United States v. Stevens , 918 F.2d
1383, 1387 (8th Cir. 1990) (despite assertion that higher
drug quantity could not be considered under cooperation
agreement, defendant voluntarily stipulated to higher
amount in superseding plea agreement).

Whether the government has violated a plea, or by
analogy, a cooperation agreement, is a question of law
subject to de novo review. United States v. Huang, 178 F.3d
184, 187 (3d Cir. 1999). Whether any such agreement
exists is also a question of law with the underlying facts
found by the District Court reviewed for clear error. ATACS
Corp. v. Trans World Comm., Inc., 155 F.3d 659, 665 (3d
Cir. 1998).

Although a cooperative plea agreement is not altogether
the same as a commercial arrangement, civil contract law
is nevertheless an important and useful aid in
interpretation. Huang, 178 F.3d at 187-88 (citing United
States v. Khan, 920 F.2d 1100, 1105 (2d Cir. 1990)); see
also United States v. Nolan-Cooper, 155 F.3d 221, 236 (3d
Cir. 1998) (plea agreements construed according to contract
principles); United States v. Isaac, 141 F.3d 477, 483 (3d
Cir. 1998); United States v. Moscahlaidis, 868 F.2d 1357,
1361 (3d Cir. 1989).

The government may not rely upon a rigid and literal
construction of the terms of a plea or cooperation
agreement. Nolan-Cooper, 155 F.3d at 236. Such
agreements are unique and are to be construed in light of
"special due process concerns." United States v. Bradbury,
189 F.3d 200, 206 (2d Cir. 1999) (internal quotes omitted).
Courts must determine whether the government's conduct
was inconsistent with what was reasonably understood by
defendant when entering the plea of guilt. United States v.
Badaracco, 954 F.2d 928, 939 (3d Cir. 1992); Bradbury,
189 F.3d at 206. In view of the government's tremendous
bargaining power, we will strictly construe the text against
it when it has drafted the agreement. United States v.
Padilla, 186 F.3d 136, 140 (2d Cir. 1999).

As is apparent from the text of guideline section 1B1.8(a),
there is a threshold inquiry of whether the government

                                10
promised to immunize the defendant's incriminating
statements. We thus begin with the letter of December 9,
1994. As noted earlier, it states that "[f]rom now on, any
statements, documents, tape recordings or other
information which you may provide is on the record, and
could be admitted against you in the future if you failed to
plead guilty to the offenses" enumerated in the agreement.

That clause is the focal point of the dispute. Defendant
reads it to mean that information garnered from his
assistance could be used against him only if he failed to
plead guilty to the offenses described in the letter. In his
view, the phrase "if you failed to plead guilty" creates a
condition precedent to the use of any incriminating
information against him. The government, in contrast,
takes the position that all information was "fully on the
record," and that the now-disputed statement was merely a
warning of the consequences of a failure to plead, and not
a promise to immunize cooperation evidence upon entry of
a guilty plea.

We reject the government's reading. Construing
ambiguity against the government, we conclude the
agreement states that if defendant did plead guilty, the
information would not be used "against [him] in the future."
We are persuaded that reasonable persons would
understand the challenged clause to mean that
incriminating information would not be admitted against
defendant in any proceeding, including his own sentencing,
if he pleaded guilty to the designated offenses.

Having determined that an agreement exists, we must
next consider whether defendant breached it, and if so,
whether it remained in force. After the letter was signed,
defendant attempted to shield his fellow officer DeGovanni.
Nevertheless, even while attempting to aid DeGovanni,
defendant was simultaneously providing information to
incriminate other members of the police force.

It seems clear that the effort to aid DeGovanni was at
least a partial breach of that agreement and defendant does
not appear to contend otherwise. Upon learning of the
defendant's duplicity, the government might have declared
a breach of the agreement and either attempted to sever its

                               11
relationship with defendant or to negotiate a new
arrangement disavowing the earlier one. That, however,
does not seem to have occurred. Instead, defendant agreed
to plead to an additional count for obstruction of justice,
but significantly, continued his cooperation.

The next important development is the execution of the
formal plea agreement on March 30, 1995. Paragraph 2(j) of
that document has particular relevance:

       Defendant agrees that if the government determines
       that the defendant . . . has committed any federal,
       state or local crime between the date of this agreement
       and his sentencing, . . . the agreement may be voided
       by the government and the defendant shall be subject
       to prosecution for any federal crime of which the
       government has knowledge including, but not limited
       to, perjury, obstruction of justice, and the substantive
       offenses arising from this investigation. This
       prosecution may be based upon any information
       provided by the defendant during the course of his
       cooperation, and this information may be used as
       evidence against him.

This provision means that if defendant engaged in
criminal conduct after signing the plea agreement, the
government could use any information supplied by
defendant against him. By negative implication, as in the
instance of the December 9 letter, the government agreed
as a general matter not to use to the defendant's detriment
information obtained through the cooperation process.
Thus, the plea agreement was consistent with the
December 9 letter of immunity.

We note that paragraph 4(d) of the plea agreement
indicates that the government could "bring to the Court's
attention all facts relevant to sentencing (including evidence
relating to the character of the defendant)." This provision,
of course, begs the question of what facts are "relevant" to
sentencing. By agreeing to immunize self-incriminating
information, the government has limited the scope of
information that may be considered at sentencing. We
therefore do not understand this provision to provide an
end-run around the cooperation agreement.

                                12
Reading the formal plea agreement against the
government as the drafter, and in light of its acceptance of
the plea to obstruction of justice as an apparent cure of the
initial breach, we conclude that the government treated the
December 9 agreement as remaining in effect. That
conclusion is not altered by the plea agreement's
integration clause, which states that "no additional
promises, agreements or conditions have been entered into
other than those set forth in this document . . . ." This
obvious boilerplate does not contain language purporting to
supersede the December 9 letter. Further, the two
documents may be read consistently with one another. In
light of these considerations and the special due process
concerns in the criminal arena, the integration clause has
no effect in this context.

Having concluded that there has been a breach, an
apparent cure, and a conceded continuation of the
cooperation, we must determine whether the District Court
was correct in declaring the agreement null and void. In
contract law, the effect of a breach is a frequently litigated
issue. The question is often whether the agreement is
absolutely and automatically dissolved on the occurrence of
an event, i.e., void, or whether one party's action gives the
other the option to declare the agreement at an end, i.e.,
voidable.

As expressed by a recognized authority on contracts,
"[u]ntil the party who has the power of avoidance elects to
exercise it, the contract remains intact. Moreover, even
though one of the parties has the power of avoidance, he
may extinguish that power by ratification of the contract."
John E. Murray, Jr., Murray on ContractsS 17, at 31 (3d
ed. 1990). On the other hand, " `[v]oid' contracts are not
contracts at all" and any promise therein is unenforceable.
Id. at 32; see also Restatement of Contracts (Second) S 7
(1981); E. Allan Farnsworth, Contracts S 4.10, at 243-44 (3d
ed. 1999); 1 Joseph M. Perillo, Corbin on Contracts SS 1.6-
1.7 (rev. ed. 1993).

Although the District Court characterized the plea
agreement as "null," it is clear that if there was a contract,
it would be voidable, not void. Moreover, in the criminal
context, if a breach is to be remedied by a subsequent

                               13
agreement, the defendant should receive an adequate
warning of the consequences. Bradbury, 189 F.3d at 208.
Failure to provide adequate notice of a breach would
undercut one of the " `most important advantages' " of
section 1B1.8, that " `prosecutors can . . . assure potential
informants that their statements will in no way be used
against them.' " Id. at 208 (quoting Shorteeth, 887 F.2d at
257) (alteration in original). The record before us does not
reveal any warning to defendant as to the consequences of
his breach. Instead, the government continued to reap
substantial benefits from his cooperation.

In sum, construing the documents against the drafter, we
conclude that the government agreed not to use
information defendant provided against himself at
sentencing. The government accepted the defendant's guilty
plea to obstruction of justice as a satisfaction of the breach
and did not attempt to avoid the December 9 agreement. It
further appears that the government's performance in
continuing the cooperation arrangement without any
warning to defendant that its former promise no longer
applied constituted a waiver of the breach. Consequently,
the District Court erred in ruling that the cooperation
agreement was a nullity.

At this stage, defendant has laid the groundwork for a
meritorious claim, but we caution that the record is not
complete. Immunity does not extend to material known to
the government before it entered into the cooperation
agreement. U.S.S.G. S 1B1.8(b)(1); United States v. Wilson,
106 F.3d 1140, 1144 n.5 (3d Cir. 1997). Nor would it
generally apply to disclosures made during the plea
colloquy.

Also, information post-dating the agreement and obtained
from independent sources is not barred. United States v.
Gibson, 48 F.3d 876, 879 (5th Cir. 1995). Information
separately gleaned from co-defendants is also fair game,
United States v. Davis, 912 F.2d 1210, 1213 (10th Cir.
1990), and the defendant's later corroboration does not
remove the co-defendant's evidence from consideration.
United States v. Boyd, 901 F.2d 842, 845 (10th Cir. 1990).
But the government may not evade U.S.S.G. S 1B1.8(a)
where the evidence was elicited solely as a result of, or

                               14
prompted by, the defendant's cooperation. Davis , 912 F.2d
at 1213; see also Gibson, 48 F.3d at 878.

The sources of the information utilized in the sentencing
calculation in this case may only be resolved by a hearing
on remand. Bradbury, 189 F.3d at 208; United States v.
Amato, 46 F.3d 1255, 1262-63 (2d Cir. 1995); Kinsey, 917
F.2d at 184.

III.

We also note that the record is insufficient to establish
whether the conduct of trial counsel satisfies Strickland's
deficiency requirement, i.e., that the representation fell
below the competence of attorneys in criminal cases.
Strickland, 466 U.S. at 688. As one facet of this inquiry, we
point out that under Burns v. United States, 501 U.S. 129,
138-39 (1991), a District Court must notify the parties in
advance of sentencing if it intends to depart upwards on
grounds not set out in the presentence report or the
government's submission. United States v. Barr , 963 F.2d
641, 655 (3d Cir. 1992); see also United States v. Hecht, ___
F.3d ___, No. 99-1543, 2000 WL 637396, at *2 (3d Cir. Feb.
29, 2000). The record before us does not indicate whether
such notice was given, or if it was required here.

Because the record contains no evidence on the reasons
underlying counsel's decision not to challenge the
presentence report or sentence on section 1B1.8 grounds,
a hearing is required on that point as well.

Defendant has presented a prima facie claim of prejudice,
but that too must be fleshed out on remand. Defendant
must show that "but for counsel's unprofessional errors,
the result of the proceeding would have been different."
Strickland, 466 U.S. at 694. The determination of prejudice
"should not depend on the idiosyncracies of the particular
decisionmaker," and should instead "proceed on the
assumption that the decisionmaker is reasonably,
conscientiously, and impartially applying the standards
that govern the decision." Id. at 695. Whether the
defendant's prima facie claim can be rebutted by the
government will have to be determined on remand.

                                15
Accordingly, the order of the District Court will be
reversed and the case will be remanded for further
proceedings consistent with this Opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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