                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-24-2003

USA v. Smack
Precedential or Non-Precedential: Precedential

Docket No. 02-2620




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                       PRECEDENTIAL

                               Filed October 24, 2003

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                 No. 02-2620


        UNITED STATES OF AMERICA
                      v.
               DION A. SMACK,
                 a/k/a DEE
               DION A. SMACK,
                             Appellant

On Appeal From the United States District Court
    For the Eastern District of Pennsylvania
             (D.C. No. 99-cr-00089-2)
     District Judge: Honorable Marvin Katz

          Argued September 9, 2003
  Before: SCIRICA, Chief Judge, BECKER and
          GREENBERG, Circuit Judges.

           (Filed October 24, 2003)
                           2


                    MAUREEN KEARNEY ROWLEY,
                     ESQUIRE
                    Chief Federal Defender
                    DAVID L. McCOLGIN, ESQUIRE
                    Supervising Appellate Attorney
                    JONATHAN D. LIBBY, ESQUIRE
                    Research & Writing Specialist
                    ROBERT EPSTEIN, ESQUIRE
                     (Argued)
                    Assistant Federal Defender
                    Federal Court Division
                    Defender Association of Philadelphia
                    Suite 540 West — Curtis Center
                    Independence Square West
                    Philadelphia, Pennsylvania 19106
                     Counsel for Appellant
                    PATRICK L. MEEHAN
                    United States Attorney
                    LAURIE MAGID
                    Deputy United States Attorney
                     For Policy and Appeals
                    ROBERT A. ZAUZMER
                    Assistant United States Attorney
                    Senior Appellate Counsel
                    GREGORY A. PAW, ESQUIRE
                     (Argued)
                    Assistant United States Attorney
                    Eastern District of Pennsylvania
                    Suite 1250
                    615 Chestnut Street
                    Philadelphia, Pennsylvania 19106
                     Counsel for Appellee


               OPINION OF THE COURT

BECKER, Circuit Judge.
  This is an appeal by defendant Dion A. Smack from a
judgment in a criminal case. It has a complex, almost
convoluted history, compounded by a poorly drafted and
                              3


confusing application note to the U.S. Sentencing
Guidelines. Although technically before us as an appeal,
this case is at bottom a proceeding under 28 U.S.C. § 2255
because the real issue is whether, as Smack contends,
counsel at his original plea and sentencing was ineffective
in failing to bring to the Court’s attention at sentencing the
terms of Application Note 12 of Sentencing Guideline
2D1.1, which might have given Smack a lower offense level
hence a lighter sentence had he been able to establish
either that (a) he had not agreed to transact in such a large
quantity of cocaine, or (b) he did not intend to provide, or
was not reasonably capable of providing, the funds
necessary to complete the transaction agreed to in a reverse
sting initiated by the Drug Enforcement Administration
with Smack and a confederate, and instead simply
stipulating in the plea agreement to Smack’s involvement
with ten kilograms of cocaine.
  Because of the odd procedural history of the case, the
District Court never effectively conducted a § 2255 hearing.
We have enough of a record to conclude that Smack does
meet the first prong of the test for ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 668
(1984), because of the efficacy of his contentions as
referenced above. We cannot, however, determine whether
the second Strickland prong is met. This is because no
record was ever developed on the factual questions of
intent, capability, and agreement that might bear on
Smack’s sentence—and hence on whether he was
prejudiced by receiving the sentence he did. We will
therefore remand for further consideration by the District
Court at a § 2255 hearing and for possible resentencing. We
also call upon the U.S. Sentencing Commission to revise
Application Note 12 to clarify the scope of drug transactions
to which the intent and capability defenses apply (and,
indeed, if they are defenses or elements), issues that have
divided the federal appellate courts.

            I.   Facts and Procedural History
  During January of 1999, FBI agents monitored several
conversations between Michael Reis—a witness cooperating
with the FBI—and John Shields. These conversations
                             4


concerned the purchase by Shields and others of varying
quantities of cocaine from Reis. In some of these calls,
Shields discussed his associate, Smack, who would be
helping with the purchase and distribution of the cocaine.
  The precise quantity of cocaine involved in the agreement
is difficult to pin down; indeed, it is for this very reason
that we will remand to the District Court to determine in
the first instance just what the parties contemplated. It
might have been as much as five kilograms, plus five more
on credit, as Shields and Reis discussed initially. When
Reis met Shields and Smack to complete the transaction on
January 29 (after at least eight phone conversations
between Reis and Shields), they discussed paying $54,000
for three kilograms, with four more kilograms to be
provided on credit. But Shields had brought only about
$18,000, enough to purchase one kilogram of cocaine.
Shields claimed that he would have the remainder of the
money in a few hours. Whatever the agreement, this was a
reverse sting—“an operation in which a government agent
sells or negotiates to sell a controlled substance to a
defendant,” USSG § 2D1.1, comment. (n.14)—and Shields
and Smack were arrested immediately upon taking delivery
of one kilogram of cocaine.
  Shields and Smack were both indicted. Shields pleaded
guilty pursuant to a cooperation plea agreement with the
government, and in his sentencing memorandum argued
that he and Smack had not had the wherewithal to engage
in a ten-kilogram transaction; to the contrary, he submitted
in his sentencing memorandum that they were never
looking for more than one or two kilograms, and that even
the $18,000 they did have had been supplied by a third
party.
   Smack also pleaded guilty. His agreement stipulated that
the base offense level under the U.S. Sentencing Guidelines
(“USSG” or “Guidelines”) for the offense was 32, because he
had attempted to purchase with the intent to distribute ten
kilograms of cocaine. Smack was sentenced in a separate
proceeding from Shields. After receiving the benefit of a
three point reduction for acceptance of responsibility,
Smack was sentenced to 120 months imprisonment, five
years supervised release, and a special assessment of $100.
                              5


  Neither at sentencing, nor, it appears, in the process of
negotiating Smack’s plea agreement, did Smack’s counsel
raise the issue of the applicability of Application Note 12 to
USSG § 2D1.1 (“Note 12”) and United States v. Raven, 39
F.3d 428 (3d Cir. 1994). As we discuss in some detail
below, it is Note 12 which controls the quantity used for
Guidelines purposes in prosecutions arising out of stings,
reverse stings, and other situations where the delivered
quantity of controlled substance may differ from the
agreed-upon quantity. In Raven we indicated that (a prior
version of) Note 12 applied to reverse stings, and held that,
when a defendant puts his intent and ability to
consummate a proposed transaction in issue, the
government is required to prove the defendant’s intent and
ability. Smack asserts on appeal that his counsel’s
performance was deficient in failing to press the Note 12
/Raven issue and instead advising him to stipulate to a
quantity (ten kilograms) at the upper bound of what the
parties had considered in early negotiations.
   After sentencing, Smack filed a pro se motion under 28
U.S.C. § 2255 alleging ineffective assistance of counsel.
That motion included the ineffectiveness claim pressed
here, a claim that counsel had failed to file a notice of
appeal as Smack had requested, and other claims of
ineffectiveness. The District Court denied that motion and
denied a certificate of appealability, but this Court granted
a certificate of appealability and remanded to the District
Court for a hearing on whether Smack’s counsel had indeed
failed to file a requested notice of appeal. At that hearing,
Smack was represented by the Federal Defender. The
government reported that efforts to reach Smack’s original
(privately retained) counsel had been unsuccessful. (Indeed,
even as of the date of oral argument in this case, Smack’s
original counsel had not been located.) Accordingly, the
District Court accepted Smack’s uncontroverted version of
events about the failure to file a notice of appeal, and
ordered him resentenced.
  It appears that all involved at the resentencing viewed it
as pro forma, i.e. merely as a vehicle to give Smack the
benefit of an appealable order. But Smack had no claims to
assert on direct appeal. Rather—and we confess that this is
                              6


much clearer in hindsight—the preferable approach would
have been for the parties at the District Court to take up
the remand as a § 2255 proceeding, because Smack’s
claims—most prominently the ineffective assistance of
counsel claim regarding the stipulation and Note 12/Raven
—were cognizable only in a § 2255 proceeding.
   Thus, we ultimately decline to take Smack’s suggestion
that this case is governed by United States v. Cocivera, 104
F.3d 566 (3d Cir. 1996), where we held that, although we
generally decline to consider a claim of ineffective
assistance of counsel in the first instance on direct appeal,
“in some cases, albeit rare, we may have a sufficient record
on appeal to decide the issue and avoid the considerable
effort of requiring the defendant to institute a collateral
proceeding in order to raise the ineffective assistance of
counsel claim.” Id. at 570-71. Cocivera is inapposite
because we do not have a sufficient record to completely
dispose of Smack’s claim. And yet it is appropriate that we
explore those aspects of the § 2255 claim that are
sufficiently developed.
   In the typical case where Cocivera does not apply, this
Court affirms the defendant’s sentence, leaving him to
pursue his ineffective assistance of counsel claim in a
§ 2255 motion. This is not the typical case. First, the
District Court has already denied Smack’s § 2255 motion
raising a similar ineffectiveness claim, apparently rendering
futile any disposition that would require Smack to first
pursue his remedies in the District Court. Yet this Court
did not pass on that disposition in Smack’s original appeal
of his § 2255 motion. Second, the key legal issues have
been well-briefed and well-argued in this appeal, and it
seems grossly inefficient to require the parties to go
through the formalities and delay of instituting another
§ 2255 proceeding and a third appeal, especially in the
absence of Smack’s original counsel. Third, further delay is
likely to deny Smack the practical benefit of any relief he is
owed: His prison term commenced in October 1999, and if
he prevails in this matter, Smack would receive a sentence
of 60 to 63 months, a term that would expire in late 2004.
Smack’s term would expire even sooner if he is credited
with time served prior to sentencing. Accordingly, it is
practical to limit the scope of the remand.
                                  7


   We turn now to our discussion, mindful of the fact that
what is really before us is Smack’s motion under § 2255 to
vacate his sentence and his plea agreement as to the
stipulated offense level and quantity of controlled
substance, and his concomitant request to order him
resentenced.

                          II.   Discussion
  We exercise plenary review over the legal component of a
claim of ineffective assistance of counsel. See Parrish v.
Fulcomer, 150 F.3d 326, 328 (3d Cir. 1998). “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.’ ” United States v. Baird, 218 F.3d 221, 225 (3d
Cir. 2000) (quoting Gov’t of the Virgin Islands v.
Weatherwax, 77 F.3d 1425, 1430-31 (3d Cir. 1996)). Here,
however, there are no findings of fact, and so, based on our
own examination of the record, we will decide whether we
can conclude as a matter of law that the record establishes
the ineffectiveness of Smack’s counsel.
  Strickland v. Washington supplies the standard for
addressing a claim of ineffective assistance of counsel:
       First, the defendant must show that counsel’s
       performance was deficient. This requires showing that
       counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant
       by the Sixth Amendment. Second, the defendant must
       show that the deficient performance prejudiced the
       defense. This requires showing that counsel’s errors
       were so serious as to deprive the defendant of a fair
       trial, a trial whose result is reliable.
466 U.S. at 687. As noted above, we can resolve the first
prong on the record before us, but leave the second for the
District Court on remand. While the Note 12 and
stipulation issues are intertwined, it is convenient to take
up the stipulation issue first.
  A.    The Stipulation
 To satisfy the first prong of Strickland, “the defendant
must show that counsel’s representation fell below an
                             8


objective standard of reasonableness,” which means
“reasonableness under prevailing professional norms.” Id.
at 688. We are satisfied that Smack’s original counsel fell
below this standard.
  Smack’s plea agreement read, in pertinent part:
    The government and defendant agree and stipulate that
    the narcotics offense in Count 1 to which defendant is
    pleading guilty carries a base offense level under the
    Sentencing Guidelines of 32 pursuant to Section
    2D1.1(c)(4) in that the defendant attempted to possess
    with the intention of distributing approximately ten
    kilograms of cocaine.
   This stipulation is somewhat perplexing in light of the
course of negotiations and the actual delivery described
above, especially the uncontested fact that only one
kilogram of cocaine was actually exchanged at the reverse
sting operation, and the posture assumed by Shields and
apparently now by Smack that they had neither the
intention nor the capacity to do a deal larger than one
kilogram. In this situation, the deficient performance of
counsel is more conventionally assessed by reference to
whether the attorney-client relationship was operating as it
should have—whether the defendant was aware of his
counsel’s stipulation, whether the defendant did or did not
direct counsel to enter the stipulation, and so on. That
inquiry is elusive, for Smack’s original counsel has
vanished and hence can not be examined on this score,
though Smack can. Setting aside what was actually
transacted (or even agreed to), the stipulation assigned a
quantity at the outer limit of what was discussed. In fact,
by simply pleading guilty in open court, Smack could not
have done worse than his plea agreement.
  Of course, a plea agreement that gains nothing for a
defendant is not per se ineffective under Strickland; to hold
otherwise would seriously disrupt the existing plea
negotiation market. What makes the difference in this case
is that there were substantial arguments to be made—
based on the relevant portions of the USSG and on this
Court’s precedent—that Smack could be held to no more
than the one kilogram actually transacted for. Smack’s
                                9


original counsel was obliged to know the Guidelines and
the relevant Circuit precedent, but he plainly did not. See,
e.g., United States v. Headley, 923 F.2d 1079, 1083-84 (3d
Cir. 1991) (despite limited record on appeal, sentencing
counsel held ineffective for failing to argue for “minor
participant” downward departure). We now turn to focus on
Note 12 and United States v. Raven, as Smack’s original
counsel should have.
  B.    Application Note 12 and United States v. Raven
  Application Note 12 to USSG § 2D1.1 provides in relevant
part:
       In an offense involving an agreement to sell a
       controlled substance, the agreed-upon quantity of the
       controlled substance shall be used to determine the
       offense level unless the sale is completed and the
       amount delivered more accurately reflects the scale of
       the offense. For example, a defendant agrees to sell 500
       grams of cocaine, the transaction is completed by the
       delivery of the controlled substance—actually 480
       grams of cocaine, and no further delivery is scheduled.
       In this example, the amount delivered more accurately
       reflects the scale of the offense. In contrast, in a
       reverse sting, the agreed-upon quantity of the
       controlled substance would more accurately reflect the
       scale of the offense because the amount actually
       delivered is controlled by the government, not by the
       defendant. If, however, the defendant establishes that
       he or she did not intend to provide, or was not
       reasonably capable of providing, the agreed-upon
       quantity of the controlled substance, the court shall
       exclude from the offense level determination the
       amount of controlled substance that the defendant
       establishes that he or she did not intend to provide or
       was not reasonably capable of providing.
Since this is an offense involving an agreement to sell a
controlled substance, this portion of Note 12 applies.
  Note 12 is opaque and confusing. On the one hand, it
seems to command that the agreed-upon quantity of
controlled substance, regardless of amount delivered, be
used for sentencing in a prosecution arising out of a reverse
                                     10


sting. On the other hand, it seems to immediately qualify
that statement (“If, however . . .”), and provide the
defendant some relief by way of “establish[ing]” lack of
ability or lack of intent.1 But on a second reading, it seems
that the last sentence cannot apply to reverse stings,
because it refers to “the defendant . . . providing . . . the
agreed-upon quantity of the controlled substance,” and
surely the “controlled substance” is cocaine, not dollars. It
was on this seemingly compelling logic that the Court of
Appeals for the Second Circuit held that, by its plain
meaning, the last sentence of Note 12 does not apply to
reverse stings. See United States v. Gomez, 103 F.3d 249,
252-53 (2d Cir. 1997).
  The Second Circuit’s view is not universal. In fact, there
seems to be a circuit split on this question. The Courts of
Appeals for the First and Tenth Circuits do appear to follow
the Second Circuit. See United States v. Perez de Dios, 237
F.3d 1192 (10th Cir. 2001); United States v. Brassard, 212
F.3d 54 (1st Cir. 2000). But the Courts of Appeals for the
Seventh and Ninth Circuits seem to apply the final
sentence of the new Note 12 to reverse stings. See United
States v. Minore, 40 Fed. Appx. 536 (9th Cir. 2002) (mem.
op.); United States v. Estrada, 256 F.3d 466 (7th Cir. 2001).
The Court of Appeals for the Eighth Circuit has declined to
reach this question. See United States v. Williams, 109 F.3d
502 (8th Cir. 1997). The other Courts of Appeals do not
appear to have weighed in.
   We might try to make sense of Note 12 by turning our
sights beyond buyers in reverse stings to look at buyers in
general. As to buyers in general, Note 12 seems to be silent
—the last sentence speaks only to sellers, as noted, and
nothing in the note speaks to buyers. Traditional principles

1. Yet another question is whether this relief is by way of an affirmative
defense (i.e., the defendant would bear the burden of production and the
burden of proof), or by way of giving the defendant the option of putting
ability or intent in issue and holding the government to its proof (i.e., the
defendant would bear the burden of production, but the government the
burden of proof). This was addressed in United States v. Raven, 39 F.3d
428 (3d Cir. 1994), which interpreted a prior version of Note 12. We take
up Raven and that prior version of Note 12 after discussing the newer
version of Note 12 in effect when Smack was sentenced.
                                    11


of criminal law would suggest, though, that buyers should
also have the benefit of the mens rea and impossibility
defenses in the last sentence, mutatis mutandis. But if this
were so, then we would be left with the peculiar result that
those defenses would be available to all traffickers in
controlled substances except buyers in reverse stings. Cf.
United States v. Raven, 39 F.3d 428, 436 n.11 (3d Cir.
1994) (“[I]t seems to us fundamentally unfair that only in
cases involving unconsummated drug transactions by
sellers would the government have to demonstrate that the
defendant intended and was able to complete the negotiated
transaction.”). While not irrational, the schema of Note 12
seems a bit warped—and certainly open for counsel’s
argument that Smack’s situation merited special sentencing
consideration.
  Counsel could also have made the obvious argument
based on our interpretation in Raven of an earlier version
of Note 12.2 Raven held that once a defendant puts his
intent and capability in issue, the government must come
forward with proof. And although Raven was a drug courier

2. The version of Note 12 in effect at Raven’s sentencing read in pertinent
part:
    In an offense involving negotiation to traffic in a controlled
    substance, the weight under negotiation in an uncompleted
    distribution is used to calculate that amount. However, where the
    court finds that the defendant did not intend to produce and was
    not reasonably capable of producing the negotiated amount, the
    court shall exclude from the guideline calculation the amount that
    it finds the defendant did not intend to produce and was not
    reasonably capable of producing.
Raven, 39 F.3d at 432.
  Certainly, there are differences between this version of Note 12 and the
version of Note 12 under which Smack was sentenced. First, the old Note
12 does not advert to reverse stings, while the new Note 12 has a specific
provision addressing them. Second, the old Note 12 refers to the
“negotiated amount”—which could refer to money—while the new Note
12 refers to “amount of controlled substance,” thus excluding buyers.
Third, the defenses in the old Note 12 are phrased in the conjunctive,
while the defenses in the new Note 12 are phrased in the disjunctive.
None of these, though, seems to compel the view that new Note 12 has
necessarily consigned Raven to the trash heap.
                             12


case, the Court explicitly discussed the application of the
last sentence of old Note 12 to buyers, sellers, and couriers
alike. Raven, 39 F.3d at 437. In other words, Smack’s
original counsel had a good faith basis—indeed, an
obligation—to argue that Raven still controls.
   We offer none of this commentary as a holding on the
proper construction of Note 12 as it now stands, nor do we
decide whether Raven has in fact survived the revision of
Note 12. (We are hopeful that the U.S. Sentencing
Commission will take this matter up promptly and resolve
it. We urge it to do so.) Rather, this discussion sets the
backdrop to the scene at Smack’s original sentencing when
his counsel advised him to forego these arguments and
stipulate to the highest base offense level conceivably
supported by the facts of his case.
   We observe that Smack’s original counsel could have
advanced either or both of two arguments in lieu of
surrendering with the stipulation in Smack’s plea. First, as
we have illustrated, there is considerable room for
argument about how Note 12 and Raven should operate in
Smack’s case. Second, even if it offers Smack no other
comfort, Note 12 at the very least requires ascertaining the
“agreed-upon quantity of controlled substance.” As we
noted above, the record on the agreed-upon quantity is not
clear. But that is precisely the point: By failing to develop
the record or challenge the government on the agreed-upon
quantity, Smack’s original counsel’s performance fell below
Strickland’s standard of “reasonableness under prevailing
professional norms.” 466 U.S. at 688.
  Having found Smack’s original counsel’s performance
deficient, we turn to Strickland’s second prong.
  C.   Prejudice
  To satisfy the second prong of Strickland, the “prejudice”
prong, “[t]he defendant must show that there is a
reasonable     probability  that,    but    for    counsel’s
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
                                     13


  We cannot resolve this question on the record before us,
and we certainly cannot say that Smack “is entitled to no
relief,” within the meaning of § 2255. Perhaps indeed
Smack is liable for ten kilograms (or seven, which carries
the same base offense level of 32, see USSG § 2D1.1(c)(4)
(base offense level 32 applies to quantities of at least five
but less than fifteen kilograms of cocaine)). But perhaps he
is liable for only the one kilogram that was exchanged.
Accordingly, as required by § 2255, the District Court
should hold “a prompt hearing” to “determine the issues
and make findings of fact and conclusions of law” on
whether there is a reasonable probability that, had he
received effective assistance of counsel at his original
sentencing, Smack would have established that he was
entitled to a shorter sentence. The reasonable probability of
any decrease in Smack’s sentence would establish
prejudice. See Glover v. United States, 531 U.S. 198 (2001)
(holding that any reduction in sentence constitutes
substantial prejudice for purposes of Strickland analysis).
The remedy, in turn, would be to resentence Smack.3
  For the foregoing reasons we will remand the case to the
District Court so that it may conduct a § 2255 hearing. The
Clerk is directed to send a copy of this opinion, calling
attention to Part II.B, to the Chairwoman and members of
the U.S. Sentencing Commission and its General Counsel.

A True Copy:
        Teste:

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




3. The § 2255 hearing and the resentencing would rely on the same
record. Thus, in the interests of efficiency, the District Court could in its
discretion collapse the two into one.
