                     NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                File Name: 19a0143n.06

                                            No. 18-3240


                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                                                                        FILED
 UNITED STATES OF AMERICA,                                                        Mar 22, 2019
                                                                              DEBORAH S. HUNT, Clerk
              Plaintiff-Appellee,

 v.                                                    ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR
 WILLIAM TOTTEN,                                       THE SOUTHERN DISTRICT OF
                                                       OHIO
              Defendant-Appellant.



BEFORE:             CLAY and STRANCH, Circuit Judges; PEARSON, District Judge.*

          CLAY, Circuit Judge. Defendant William Totten pleaded guilty to Conspiracy to

distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii),

and 846, and Money Laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and received a 125-

month sentence. On appeal, he claims that he is entitled to resentencing because he received

ineffective assistance of counsel. For the reasons set forth below, we DISMISS Defendant’s

appeal.

                                         BACKGROUND

          Defendant was the “supplier” in a drug trafficking organization, and in this role he was

“responsible for dispersing kilogram quantities of cocaine to street level dealers.” (PSR ¶ 45.) An

investigation revealed that Defendant “had been distributing ounce to kilogram size quantities of



          *
        The Honorable Benita Y. Pearson, United States District Judge for the Northern District
of Ohio, sitting by designation.
Case No. 18-3240, United States v. Totten


cocaine from 2010 to 2013 in the central Ohio area,” and was involved in distributing between

15 and 50 kilograms of cocaine. (PSR ¶ 50.) Through confidential informants and surveillance,

agents obtained sufficient evidence to obtain search warrants for two houses involved in the

conspiracy, where they found significant amounts of cocaine, a firearm, cell phones, jewelry,

digital scales, cash, and other indicia of drug trafficking.

        On January 16, 2014, Defendant, along with several codefendants, was indicted on ten

counts related to the trafficking organization. Ultimately, Defendant pleaded guilty to two counts:

Conspiracy to distribute more than five kilograms of cocaine in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A)(ii), and 846, and Money Laundering in violation of 18 U.S.C.

§ 1956(a)(1)(B)(i). The plea agreement into which Defendant entered on September 5, 2014

recognized that the conspiracy charge carried with it a mandatory minimum term of ten years. The

agreement made clear that “[D]efendant is aware that the Court has not yet determined a sentence,”

that the court had authority to impose a sentence up to the statutory maximum, and that “any

estimate of the probable sentencing range . . . that the defendant may have received from the

defendant’s counsel, the United States, or the probation office, is a prediction, not a promise.”

(R. 130, Plea Agreement, Page ID# 353.) The agreement also noted that the government could

move the court for an appropriate departure that would have allowed the court to sentence

Defendant below the statutory mandatory minimum.

        Throughout these proceedings, Defendant was represented by retained counsel, Joseph D.

Reed. Reed moved for a continuance three times between March 7, 2014 and June 4, 2014, and

each time the government joined the motion.

        At an August 12, 2014 scheduling conference, the district court noted that Reed “can be a

little difficult to get ahold of at times because [he’s] so busy” but noted that Reed was “well-



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Case No. 18-3240, United States v. Totten


regarded here.” (R. 222, 8/12/2014 Status Conf. Tr., Page ID# 706–07.) The plea hearing was

scheduled for September 3. Reed was not present at the time scheduled for the sentencing hearing

because, due to a “problem with [his] calendar,” he believed the hearing was scheduled for the

following week. (R. 229, 9/3/2014 Proceeding, Page ID# 816.) When the court telephoned Reed,

he came directly to the courtroom, arriving roughly twenty minutes after the hearing had been

scheduled to begin. Defendant stated that he had not seen Reed since the August 12 scheduling

conference. Reed told the court that he and the government were still working out details of the

plea agreement relating to property involved in the case. The plea hearing was rescheduled for

September 5, 2014, and on that date Defendant entered into the plea agreement.

        After moving for and receiving a fourth continuance, Reed filed a sentencing memorandum

on February 3, 2015 seeking “[a] sentence in the same range as those of his Co-Defendants.”

(R. 171, Defendant’s Sentencing Memo., Page ID# 511.)           The government responded that

Defendant should not receive a similar sentence because, among other reasons, Defendant had not

“cooperated truthfully with the government early in [the] prosecution” like his codefendants had.

(R. 172, Gov’t Sentencing Memo., Page ID# 516.)

        At the sentencing hearing on February 4, 2015, Defendant stated that he was not ready to

proceed because he wished to retain a different lawyer. Defendant felt “that Mr. Reed didn’t do

his job to satisfaction,” citing Reed’s failure to appear on time at the September 3, 2014 hearing;

Reed’s failure to meet with Defendant since September 2014 (an allegation that Reed disputed);

Reed’s failure to provide Defendant with his Presentence Investigation Report (“PSR”) until

January 20, 2015; and Reed’s failure to complete the sentencing memorandum until the day before

the sentencing hearing. (R. 225, 2/4/2015 Sentencing Tr., Page ID# 745–46.)




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Case No. 18-3240, United States v. Totten


        Reed was replaced by Kevin Conners. At a status conference on February 8, 2017, Conners

noted that Defendant’s “initial plea was essentially uncounseled,” that “there are a number of

things that happened [and] didn’t happen where I think Mr. Totten could have benefited

substantially, whether with assistance from the government or otherwise, in his plea that just didn’t

happen [because Reed] just did not take those efforts.” (R. 226, 2/8/2017 Status Conf. Tr., Page

ID# 762.) Conners raised the fact that the other defendants in the case had received “dramatically

lower sentences” than the sentence contemplated by the PSR for Defendant. (Id., Page ID# 763.)

The government reiterated that during the summer 2014 interview, Defendant did not tell the truth

to the government and that it “was way late in the game as it was” when Defendant spoke to the

government compared to the other defendants in the case. (Id., Page ID# 766.) The conference

ended with the court allowing Conners thirty days to file any motions he wanted to file. Conners

did not file any motions.

        On March 8, 2018, a sentencing hearing was held, and the district court imposed a 125-

month sentence.

                                            DISCUSSION

        Defendant argues that Reed rendered ineffective assistance of counsel resulting in

prejudice to Defendant. Defendant believes that “because the prejudice in his case resulted in

application of the mandatory minimum, the appropriate remedy is to not apply the mandatory

minimum and allow the trial court to weigh an appropriate sentence without that limitation.”

(Appellant’s Br. 17.)

                           Preservation of the Issue & Standard of Review

        The government and Defendant disagree about whether this issue was preserved for appeal.

Defendant argues that he preserved the issue of whether Reed provided ineffective assistance of



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Case No. 18-3240, United States v. Totten


counsel but admits that he did not preserve the issue of what remedy is proper. The government

argues that Defendant did not preserve the ineffective-assistance-of-counsel claim, which is being

raised for the first time on appeal. The government is correct.

        Conners raised some issues relating to Reed’s performance at the February 8, 2017 status

conference; however, he did not file a motion in connection with these statements (as the court

allowed him thirty days to do) or even note a formal objection. Conners’ statements alone are

insufficient to preserve the issue on appeal. This Court “ha[s] held that litigants may preserve an

argument in the district court by ‘rais[ing]’ it for the first time at a hearing, even when they

neglected to make the argument in a pre-hearing filing.” United States v. Huntington Nat’l Bank,

574 F.3d 329, 332 (6th Cir. 2009) (second alteration in original) (quoting United States v.

Buckingham, 433 F.3d 508, 512 (6th Cir. 2006)). This Court has elaborated on what it means to

“raise” an issue:

        At a minimum, a litigant must state the issue with sufficient clarity to give the court
        and opposing parties notice that it is asserting the issue. Yet notice by itself does
        not suffice. Otherwise, a litigant could preserve an issue merely by summarily
        mentioning it, and we know that conclusory allegations and perfunctory statements,
        unaccompanied by citations or some effort at legal argument, do not meet this
        standard.

Id. (citations omitted).

        In this case, Defendant at most summarily mentioned the issue. Defendant’s statements at

the status conference were unaccompanied by citations, contained no real effort at legal argument,

and did not once mention the phrase “ineffective assistance of counsel.” See Bldg. Serv. Local 47

Cleaning Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1399 (6th Cir. 1995)

(“[V]ague references fail to clearly present [an] objection in the district court so as to preserve the

issue for appellate review.”). The district court gave Defendant thirty days to submit any motions

he might want to file, and he chose not to file any. It is not clear that the government was on notice


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Case No. 18-3240, United States v. Totten


as to a potential ineffective-assistance-of-counsel claim, and the issue was certainly never before

the district court to decide. Because Defendant did not in any way develop these arguments with

factual or legal arguments (despite an invitation to do so by the court), this argument was not

preserved for appeal. See Tele-Commc’ns, Inc. v. Comm’r of Internal Revenue, 104 F.3d 1229,

1233 (10th Cir. 1997) (“Propounding new arguments on appeal in an attempt to prompt us to

reverse the trial court undermines important judicial values. . . . [W]e should not be considered a

‘second-shot’ forum . . . where secondary, back-up theories may be mounted for the first time.”).

        Because this argument was not raised below, this Court reviews for plain error. United

States v. Dedman, 527 F.3d 577, 591 (6th Cir. 2008) (“While constitutional challenges are typically

reviewed de novo, when the argument was not raised at the district court ‘Sixth Circuit precedent

requires application of the plain error standard.’” (quoting United States v. Barton, 455 F.3d 649,

652 (6th Cir. 2006))).

                                             Analysis

        An ineffective assistance of counsel claim requires a defendant to show that his counsel’s

performance was deficient and that the defendant was prejudiced as a result of the deficient

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

conduct that “fell below an objective standard of reasonableness,” and there is a “strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 688–89. “To demonstrate deficient performance, a petitioner must ‘show[] that

counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment.’” Leonard v. Warden, Ohio State Penitentiary, 846 F.3d 832,

843–44 (6th Cir. 2017) (alteration in original) (quoting Strickland, 466 U.S. at 687).




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Case No. 18-3240, United States v. Totten


        The government argues that because this claim is being raised for the first time on appeal,

this Court should not review it at all. This Court has explained:

        Ineffective assistance claims are more properly raised in a post-conviction
        proceeding brought pursuant to 28 U.S.C. § 2255, where the record regarding
        counsel’s performance can be developed in more detail. This Court typically will
        not review a claim of ineffective assistance on direct appeal except in rare cases
        where the error is apparent from the existing record.

United States v. Lopez–Medina, 461 F.3d 724, 737 (6th Cir. 2006) (citations omitted). This Court

considers what record evidence is available to explain why defense counsel made the decisions

that were allegedly deficient performance. See id.; United States v. Gardner, 417 F.3d 541, 545

(6th Cir. 2005) (“The record contains no evidence regarding what advice, if any, [defendant’s]

counsel provided with regard to the potential drug-quantity enhancement.”).

        In this case, the evidence of record concerning Reed’s performance is limited, and more

evidence is needed to decide whether Reed was ineffective.

        Defendant argues that Reed was deficient because he did not adequately prepare Defendant

for the interview with the government that occurred in the summer of 2014. However, there is no

record evidence to back up these assertions. Reed never testified as to how he prepared Defendant

for the session and why he made the choices he did. Defendant himself never described the

preparation he received, if any. It is true that the government stated that “Reed probably did not

spend the time with Mr. Totten that he should have in getting him ready for [the interview],” (R.

226, 2/8/2017 Status Conf. Tr., Page ID# 766), but this speculation by the government does not

make it “apparent from the existing record” that Reed was ineffective. Lopez–Medina, 461 F.3d

at 737. More information is needed to assess Defendant’s claim.

        Defendant also points to Reed’s admission that certain of Defendant’s complaints about

him were correct. However, it is not clear from the record what Reed was admitting, and it was



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Case No. 18-3240, United States v. Totten


not clear that the alleged deficiencies constitute ineffective assistance of counsel. At the February

4, 2015 sentencing hearing, Defendant stated that he did not receive his PSR until January 20,

2015; that Reed had not completed the sentencing memorandum until the day before the sentencing

hearing; and that he had not seen Reed since September 2014. Although Reed said that “Mr.

Totten’s complaints are correct” and admitted that he had “neglected to spend sufficient time with

[Defendant],” (R. 225, 2/4/2015 Sentencing Tr., Page ID# 746), it is not clear whether Reed was

admitting to each specific allegation Defendant made against him or whether he agreed only with

the general sentiment that he could have spent more time with Defendant. This is not an admission

that Reed had provided ineffective assistance of counsel, as Defendant argues.

        Nothing in the record explains why Defendant did not get the PSR (which was prepared in

late September) until January,1 nor why Reed filed the sentencing memorandum when he did. As

to Defendant’s conceptually similar argument about Reed’s failure to furnish him with copies of

evidence obtained during discovery, the record does not explain what that evidence was, why it

was important to Defendant’s case, or why Reed failed to provide it. Without knowing why Reed

did what he did, it is not possible to decide whether or not Reed was ineffective. See Lopez-

Medina, 461 F.3d at 737 (“The record contains no evidence regarding why, for example, defense

counsel chose not to file any additional motions beyond his initial motion to suppress or why he

chose not to challenge the agents as experts on matters pertaining to narcotics trade.”).

        It is true that Reed was late to the September 3, 2014 proceeding and attributed this to a

calendar problem that led him to believe the proceeding was scheduled for the following week.

Based on the record before this Court, Reed’s arriving twenty minutes late to one hearing is not



        1
         At one point, Reed vaguely attributed this to “an error” on his part, but it is not clear what
the nature of this error was.


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Case No. 18-3240, United States v. Totten


by itself the sort of error that is “so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Leonard, 846 F.3d at 843–44 (quoting

Strickland, 466 U.S. at 687).

        Finally, while Defendant stated that he had not seen Reed in several months, Reed said

during the same hearing that he had seen Defendant “in the last two weeks about five or six times

to go over the presentence report and discuss his objections to them.” (R. 225, 2/4/2015 Sentencing

Tr., Page ID# 746.) There is thus a factual dispute as to how frequently Defendant and Reed were

meeting in the weeks before the sentencing hearing. These sorts of disputes are better decided in

the first instance by the district court on post-conviction review. If this Court believes Reed about

how frequently he met with Defendant, it is far from apparent from the existing record that Reed

was ineffective, given the “strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance.” Strickland, 466 U.S. at 689.

        None of this is to suggest that we believe that Reed was effective as counsel. There remain

significant questions as to Reed’s performance. However, because this is not the “rare case[]

where the error is apparent from the existing record,” Lopez–Medina, 461 F.3d at 737, these

questions should be dealt with in the first instance by a district court after the submission of

evidence. Defendant will be able to fully litigate this issue in the more suitable context of a post-

conviction proceeding brought pursuant to 28 U.S.C. § 2255. Thus, we decline to review

Defendant’s ineffective-assistance-of-counsel claim, as it is not ripe for review.

        For the reasons stated above, we DISMISS Defendant’s appeal.




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