                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-2005

USA v. Booth
Precedential or Non-Precedential: Precedential

Docket No. 03-3893




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                                   PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 03-3893


      UNITED STATES OF AMERICA

                       v.

              BRIAN BOOTH,

                       Appellant


On Appeal from the United States District Court
    for the Middle District of Pennsylvania
            (D.C. No. 98-cr-00322)
 District Judge: Honorable James M. Munley


  Submitted Under Third Circuit LAR 34.1(a)
             December 6, 2005

        Before: RENDELL, FISHER
   and VAN ANTWERPEN, Circuit Judges.

          (Filed December 29, 2005)
Tina Schneider
44 Exchange Street, Suite 201
Portland, ME 04101
       Attorney for Appellant

James T. Clancy
Office of United States Attorney
228 Walnut Street
220 Federal Building and Courthouse
P.O. Box 11754
Harrisburg, PA 17108
       Attorney for Appellee




                 OPINION OF THE COURT


FISHER, Circuit Judge.

        Brian Booth appeals from the District Court’s decision
denying his motion to vacate his sentence brought pursuant to 28
U.S.C. § 2255. Booth was convicted by a jury on two counts
relating to his role in setting off a pipe bomb at an apartment
building. Booth contends that his trial counsel – aware of the
substantial evidence against Booth and that Booth did not want
to cooperate with the Government – rendered ineffective
assistance of counsel by not informing Booth that he could have
entered an “open” guilty plea to both counts without proceeding
to trial, potentially entitling him to a three-level reduction for
acceptance of responsibility under the United States Sentencing

                                2
Guidelines.1 Because we conclude that Booth’s motion set forth
sufficient allegations to require an evidentiary hearing, we will
vacate the judgment of the District Court and remand for an
evidentiary hearing on the merits of Booth’s claims.

                               I.

       Early in the morning of May 15, 1998, simultaneous
explosions from two pipe bombs rocked a multi-unit rental
property located in Stroudsburg, Pennsylvania. Fortunately,
none of the seven sleeping residents inside the apartment
building was injured. The blast, however, caused significant
property damage. An investigation following the incident
revealed that the pipe bombs, which were made out of copper
pipes and packed with smokeless powder, had been placed on
the rear kitchen door and the front side door of the building.
Additional evidence uncovered during the investigation
overwhelmingly established that Booth was responsible for the
explosions.

       Thereafter, the Government indicted Booth on two
counts. Count one charged Booth with maliciously damaging by
explosives property affecting interstate commerce, in violation
of 18 U.S.C. § 844(i). Count two charged Booth with



       1
       An “open” guilty plea is a plea made by the defendant
without the benefit of a plea agreement entered into with the
Government. See, e.g., United States v. Casiano, 113 F.3d 420,
423 (3d Cir. 1997).

                               3
possession of an unregistered firearm in the form of a bomb, in
violation of 18 U.S.C. §§ 5841, 5861(d), and 5871.

       Prior to trial, the Government and Booth’s trial counsel
entered into plea negotiations. The Government’s initial plea
offer was for Booth to plead guilty to count one of the
indictment. In exchange, the Government offered to dismiss
count two of the indictment, recommend that Booth be
sentenced to the mandatory minimum sentence of 60 months
imprisonment, and possibly bring a motion for downward
departure pursuant to 18 U.S.C. § 3553(e) if it determined that
Booth rendered substantial assistance in the investigation of a
possible co-defendant.

       Booth rejected the Government’s plea offer and made a
counter-offer to plead guilty to count two of the indictment in
exchange for the Government’s dismissal of count one. The
Government informed Booth’s counsel that it would consider
the plea to the lesser charge only if Booth would give a proffer
concerning his own culpability and the criminal involvement of
any other participants involved in the bombing. Booth balked
at the proposal because he did not want to cooperate against
anyone else involved in the crime.

       Because the parties could not agree on an acceptable
resolution of the charges, Booth proceeded to a jury trial. The
jury subsequently found Booth guilty of both charges.2


       2
       Five primary witnesses testified against Booth at trial.
Vincent Lipari, who lived at the apartment building at the time

                               4
       At the sentencing hearing, the District Court determined
that Booth’s sentencing range under the Sentencing Guidelines
was 78 to 97 months imprisonment. The District Court
sentenced Booth to concurrent 90-month sentences of
imprisonment, concurrent three-year terms of supervised release,
and restitution in the amount of $2,052.3 The District Court did



of the explosion, testified that he had a confrontation with Booth
on the previous evening over $40.00 that Booth owed to Lipari.
Brian Peters testified that Booth told him that he had an
argument with a couple of fraternity brothers who lived at the
apartment. Peters further testified that Booth told him that he
later went back to the property and placed a pipe bomb on the
front door of the house, and that Booth’s roommate placed the
second pipe bomb on the back door. Aaron Taylor, a former
middle school and high school classmate of Booth’s, testified
that Booth told him that he knew how to construct a pipe bomb
in a short amount of time. Michael Padula, a student at East
Stroudsburg University who had known Booth since they were
in the seventh grade together, testified that Booth told him that
he had an altercation with Lipari. When the two began
discussing the bombing at 202 Main Street, Booth said to
Padula, “you know, well, I did that.” Finally, Jason Crater, a
long-time friend of Booth’s, testified that Booth told him on
May 15, 1998, that “he had a problem with them people in that
house last night, and that he had a pipe bomb and put it under
their porch.”
       3
       Booth was sentenced under the 1998 version of the
Sentencing Guidelines. See U NITED S TATES S ENTENCING

                                5
not consider a downward adjustment for acceptance of
responsibility pursuant to section § 3E1.1 of the Sentencing
Guidelines because Booth had proceeded to trial and challenged
his guilt. We affirmed the judgment of conviction on March 14,
2001.

       On June 13, 2002, Booth filed a pro se motion to vacate
his sentence pursuant to 28 U.S.C. § 2255. Booth alleged in his
motion that his trial counsel, aware that the evidence against
Booth was overwhelming and that Booth did not want to
cooperate with the Government, did not inform Booth that he
could have entered an open guilty plea to both counts of the
indictment, likely entitling him to a three-level reduction for
acceptance of responsibility. Responding to Booth’s motion to
vacate sentence, the Government argued that “acceptance of
responsibility was not an option in [Booth’s] case because of the
mandatory minimum sentence applicable to the charge against
him.” In addition, the Government stated that Booth’s trial
counsel “fully advised Petitioner of his plea options,” and that
Booth’s “belief that he could have received a more favorable
plea resolution is a pipe dream.”

       The Government’s response relied primarily upon a
declaration from Booth’s trial counsel. That declaration
corroborates the history of plea negotiations between Booth and
the Government and states that Booth had told his trial counsel
that “he could not accept the terms of the proffer letter, namely,
cooperating against anyone else involved”:


G UIDELINES § 1B1.11(b)(1) (2000).

                                6
       Booth was advised by me of the process by which
       he could obtain a reduction in the sentence he was
       facing. He chose not to accept the terms of the
       proffer letter, or, more specifically, to attempt to
       render substantial assistance to the Government
       by telling them everything he knew about the
       crimes and who was involved.

The declaration also states that Booth was informed of all
possible defenses and mitigating factors that were available at
sentencing, and that Booth was informed of the “extensive
factual investigation” conducted by his trial counsel’s
investigator. Notably absent from the declaration, however, was
any indication that Booth’s trial counsel had discussed with
Booth the option of entering an open plea to counts one and two.

        On July 18, 2003, the District Court denied Booth’s
motion without holding an evidentiary hearing. The District
Court concluded that Booth’s trial counsel adequately advised
him of the consequences of his plea decisions because he fully
informed Booth of all plea negotiations with the Government.
The District Court characterized Booth’s argument that he could
have received a lower sentence by entering an open plea as
“highly speculative.” The District Court stated that Booth had
the opportunity for a lesser sentence at count two of the
indictment, that he had been aware of the “costs of that option”
(i.e., cooperating against a possible co-defendant), and that he
had rejected the option and gone to trial because “those costs
were not to his liking.” The District Court further determined
that Booth was required to go to trial on both counts because he
chose not to accept the Government’s plea offer to plead guilty

                                7
to count two. The District Court ultimately concluded that
Booth’s argument that he could have received a lighter sentence
was futile because “[e]ven if he could have received a lighter
sentence for Count II, his sentence for Count I remains at 90
months.”

                               II.

       Booth appealed the District Court’s denial of his motion
to vacate sentence, and we granted a certificate of appealability.
We have jurisdiction over Booth’s appeal pursuant to 28 U.S.C.
§ 2253. We review the District Court’s decision to deny an
evidentiary hearing on a motion to vacate sentence for abuse of
discretion. United States v. McCoy, 410 F.3d 124, 131 (3d Cir.
2005).

                               III.

        Although a district court has discretion whether to order
a hearing when a defendant brings a motion to vacate sentence
pursuant to 28 U.S.C. § 2255, our caselaw has imposed
limitations on the exercise of that discretion. In considering a
motion to vacate a defendant’s sentence, “the court must accept
the truth of the movant’s factual allegations unless they are
clearly frivolous on the basis of the existing record.”
Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d
Cir. 1989). See also R. G OVERNING § 2255 C ASES R. 4(b). The
district court is required to hold an evidentiary hearing “unless
the motion and files and records of the case show conclusively
that the movant is not entitled to relief.” Id. We have
characterized this standard as creating a “reasonably low

                                8
threshold for habeas petitioners to meet.” McCoy, 410 F.3d at
134 (quoting Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir.
2001)). Thus, the district court abuses its discretion if it fails to
hold an evidentiary hearing when the files and records of the
case are inconclusive as to whether the movant is entitled to
relief. Id. at 131, 134 (“If [the] petition allege[s] any facts
warranting relief under § 2255 that are not clearly resolved by
the record, the District Court [is] obligated to follow the
statutory mandate to hold an evidentiary hearing.”).

        In this case, Booth alleges that his trial counsel was
ineffective because he failed to inform Booth of all possible plea
options to resolve his criminal case and entitle him to a more
favorable sentence. In order to determine whether Booth’s trial
counsel was constitutionally ineffective under the Sixth
Amendment, we must apply the familiar standard developed in
Strickland v. Washington, 466 U.S. 668 (1984), and its progeny.
Under that standard, a criminal defendant may demonstrate that
his representation was constitutionally inadequate by proving:
(1) that his attorney’s performance was deficient, i.e.,
unreasonable under prevailing professional standards; and (2)
that he was prejudiced by the attorney’s performance. Forte,
865 F.2d at 62 (citing Strickland, 466 U.S. at 687, 694). Under
the first prong, “[j]udicial scrutiny . . . is highly deferential,” and
courts “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 688-89. In order to
establish prejudice, the defendant must prove 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. We have endorsed the practical suggestion in

                                  9
Strickland to consider the prejudice prong before examining the
performance of counsel prong “because this course of action is
less burdensome to defense counsel.” McCoy, 410 F.3d at 132
n.6; see Strickland, 466 U.S. at 694 (stating that, “[i]f it is easier
to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so,” the
prejudice prong should be examined before the performance
prong “to ensure that ineffectiveness claims do not become so
burdensome to defense counsel that the entire criminal justice
system suffers as a result”).4

                           A. Prejudice

        In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme
Court held that the Strickland test applies to advice given by
counsel in the context of guilty plea discussions. See id. at 58
(stating that “the Strickland v. Washington test applies to
challenges to guilty pleas based on ineffective assistance of
counsel”). The Court determined that the prejudice prong in the
context of the plea process “focuses on whether counsel’s
constitutionally ineffective performance affected the outcome of
the plea process.” Id. at 58.5 Thus, under the prejudice prong,


       4
         Indeed, as set forth below, the practical suggestion to
consider initially the prejudice prong is particularly compelling
in this case where our examination of the prejudice prong helps
inform our inquiry into the performance of Booth’s trial counsel.
       5
        In Hill, the Court determined that the defendant was not
prejudiced because he failed to allege in his habeas petition that

                                 10
Booth must demonstrate that, but for his trial attorney’s alleged
ineffectiveness, he would have likely received a lower sentence.

       The Government disputes that Booth would have
received a lower sentence because “the record shows that trial
counsel, along with the prosecutor and the probation officer,
estimated that the Defendant would not have received the
benefit of a reduction for acceptance of responsibility because
of the minimum mandatory sentence attached to the crime he
committed.” The Government, however, erroneously focuses on
what Booth’s guideline offense level would have been had he
entered an open plea solely to count one. The Government
asserts that, had Booth pled guilty to count one and received a
three-level reduction, he would have been subject to a term of
imprisonment of 60 months.6 The Government’s argument
ignores that Booth was subject to two counts of an indictment,




“had counsel correctly informed him about his parole eligibility
date, he would have pleaded not guilty and insisted on going to
trial.” Hill, 474 U.S. at 60.
       6
        The Government does not argue that the District Court
would have had a basis to reject an open plea to counts one and
two in this case. In fact, the Government’s argument proceeds
on the assumption that a plea would have been accepted by the
court, but that Booth would not have been prejudiced since he
could not have “received the benefit of a reduction for
acceptance of responsibility because of the mandatory minimum
sentence attached to the crime he committed.”

                               11
and, absent a plea agreement, the Government would not have
voluntarily decided to dismiss the charges at count two.

       In this case, the District Court sentenced Booth to
concurrent 90-month sentences of imprisonment. Based upon
an offense level of 26 (because the two crimes were grouped
together pursuant to sections 3D1.1 through 3D1.5 of the
Sentencing Guidelines) and a criminal history category of III,
Booth’s guideline offense level was 78 to 97 months
imprisonment. Assuming that Booth would have received a
three-level reduction for acceptance of responsibility, he would
have been subject to a guideline range of 57 to 71 months;
however, because the statutory minimum sentence at count one
was 60 months, the guideline range would have been 60 to 71
months imprisonment.          U NITED S TATES S ENTENCING
G UIDELINES § 5G1.1(c). Thus, the Government’s mathematical
calculations ignore the reality of what actually would have
happened had Booth entered an open plea to counts one and
two. Because Booth was actually sentenced to 90 months
imprisonment, he arguably received a sentence of 19 to 30
months greater than what he would have received had he entered
an open plea to counts one and two.

       The Government additionally argues that Booth was not
prejudiced because a guilty plea does not entitle a criminal
defendant to a three-level adjustment for acceptance of
responsibility under the Sentencing Guidelines as a matter of




                              12
right. See U NITED S TATES S ENTENCING G UIDELINES § 3E1.1
cmt. n.3 (1998).7

       Under section 3E1.1(a) of the 1998 Sentencing
Guidelines, a defendant who “clearly demonstrates acceptance
of responsibility for his offense” is entitled to have his offense
level decreased by two levels. U NITED S TATES S ENTENCING
G UIDELINES § 3E1.1(a) (1998). A defendant may have his
offense level decreased by one additional level if: the defendant


       7
         Contrary to the Government’s apparent argument,
nothing in the language or application notes to section 3E1.1
provides that courts are precluded from finding that a defendant
qualifies for acceptance of responsibility if the reduction would
drop the defendant’s sentencing range below the statutory
minimum sentence. There is a good reason for this: the
Sentencing Guidelines have a built-in safeguard to prevent a
defendant’s sentence from dropping below the applicable
statutory minimum sentence. Section 5G1.1(b) provides that,
“[w]here a statutorily authorized minimum sentence is greater
than the maximum of the applicable guideline range, the
statutorily required minimum sentence shall be the guideline
sentence.”      U NITED S TATES S ENTENCING G UIDELINES
§ 5G1.1(b). Thus, if Booth would have pled guilty solely to
count one pursuant to a plea agreement, Booth could have
received a three-level reduction for acceptance of responsibility.
In that event, Booth’s statutory minimum sentence would have
been greater than his possible guideline sentence, and the 60-
month statutory minimum sentence would have been the
guideline sentence pursuant to section 5G1.1(b).

                               13
qualifies for the two-level reduction under subsection (a); the
defendant’s offense level is 16 or greater prior to the operation
of subsection (a); and the defendant assisted authorities by
(1) “timely providing complete information to the government
regarding his role in the offense,” or (2) “timely notifying
authorities of his intention to enter a plea of guilty, thereby
permitting the government to avoid preparing for trial and
permitting the court to allocate its resources effectively.”
U NITED S TATES S ENTENCING G UIDELINES § 3E1.1(b) (1998).

       Application note 5 to section 3E1.1 provides that “the
sentencing judge is in a unique position to evaluate a
defendant’s acceptance of responsibility.” U NITED S TATES
S ENTENCING G UIDELINES § 3E1.1 cmt. n.5 (1998). According
to Application note 1, the district court is directed to consider,
inter alia, whether the defendant “truthfully admitt[ed] the
conduct comprising the offense(s) of conviction, and truthfully
admitt[ed] or not falsely den[ied] any additional relevant
conduct for which the defendant is accountable[.]” U NITED
S TATES S ENTENCING G UIDELINES § 3E1.1 cmt. n.1(a) (1998).8
We have repeatedly held that district courts do not abuse their
discretion in denying the two-level adjustment for acceptance of
responsibility in situations where the defendant denied his


       8
        We have stated that an application note to the
Sentencing Guidelines is binding “unless it runs afoul of the
Constitution or a federal statute, or is plainly erroneous or
inconsistent with the section of the guidelines it purports to
interpret.” United States v. McQuilkin, 97 F.3d 723, 731 (3d
Cir. 1996).

                               14
complicity for the crime and all other relevant conduct. See,
e.g., United States v. Bennett, 161 F.3d 171 (3d Cir. 1998);
United States v. Veksler, 62 F.3d 544 (3d Cir. 1995); United
States v. Frierson, 945 F.2d 650 (3d Cir. 1991); United States v.
Singh, 923 F.2d 1039 (3d Cir. 1991).9

       In this case, however, based upon the stage of the
proceedings and the allegations in Booth’s habeas petition, we
must accept that Booth would have truthfully admitted the
conduct comprising counts one and two and any additional
relevant conduct. In that event, Booth would have likely


       9
        The Government cites United States v. Larkin, 171 F.3d
556, 558 (7th Cir. 1999), for the proposition that the District
Court could have denied the adjustment for acceptance of
responsibility because Booth “rejected several offers to reduce
the charges against him in exchange for information pertaining
to the crime.” In Larkin, however, the court did not reject the
three-level reduction because of the defendant’s failure to enter
into a plea agreement. Rather the court of appeals, as in our
decisions cited above, determined that the district court did not
abuse its discretion to deny the reduction because the defendant
refused to admit his complicity in all relevant conduct. See id.
at 558 (stating that “the district court based its denial of the
acceptance of responsibility reduction on the fact that Larkin,
acting on the advice of his lawyer, refused to tell the probation
office or the court where he got the marijuana”); see also id. at
559 (holding that “it was clearly permissible for the district court
to condition the reduction for acceptance of responsibility on
Larkin's willingness to provide this information”).

                                15
received a three-level reduction for acceptance of responsibility.
Booth was prejudiced because, by proceeding to trial and
becoming ineligible for the three-level adjustment for
acceptance of responsibility, he was exposed to an additional 19
to 30 months imprisonment. As a result, we cannot find that the
allegations in Booth’s habeas petition conclusively bars him
from demonstrating prejudice under Strickland.

                        B. Performance

       The Government argues that Booth’s trial counsel did not
perform unreasonably because he entered into extensive plea
negotiations with the Government which resulted in two
proposed plea agreements. The flaw in the Government’s
argument is that it assumes that Booth had only two possible
options: either agree to the Government’s proposed plea
agreement at count two, or proceed to trial. Booth’s habeas
petition, however, is premised on the argument that his trial
counsel, realizing the overwhelming weight of the evidence and
knowing that Booth continually objected to cooperating with the
government, should have informed him of a third option:
entering an open plea and receiving a three-level reduction in his
offense level for acceptance of responsibility.

        Booth’s pro se habeas petition contains a detailed factual
statement clearly setting forth allegations that his trial counsel
never informed him that he could enter an open plea. The
Government asserts that the trial counsel’s declaration, stating
that he discussed with Booth “all defenses that were available to
[Booth] at sentencing and . . . any factors that could mitigate the
sentence he could receive,” conclusively establishes that Booth

                                16
was informed he could enter a guilty plea without entering into
a plea agreement. The declaration, however, focuses almost
exclusively on the history of the plea negotiations, rather than
the specific allegations in Booth’s petition. In this respect, the
declaration is more probative of what it does not address rather
than what it does.

       The determination of whether trial counsel’s failure to
inform Booth that he could enter an open plea was
constitutionally deficient must be viewed through the prism of
the specific facts of this case. In this respect, two facts are key:
(1) the District Court itself recognized (and the Government
does not dispute) that the evidence against Booth was
“overwhelming”; and (2) the declaration of Booth’s trial counsel
acknowledges that Booth did not want to enter into a plea
agreement because he did not want to provide incriminating
information to the government regarding a possible co-
defendant’s role in the offense. Under these facts, it is irrelevant
that Booth may have received a better sentence had he accepted
the proposed plea agreement because Booth was never going to
provide the government with incriminating information against
a possible co-defendant. Booth’s reluctance to cooperate with
the Government was the deal-breaker. From this reluctance to
cooperate, the Government wants us to determine that Booth’s
only other option was to go to trial.

       It is clear, however, that another reasonable option was
available. We have stated that “a defendant has the right to
make a reasonably informed decision whether to accept a plea
offer” because “[k]nowledge of the comparative sentence
exposure between standing trial and accepting a plea offer will

                                17
often be crucial to the decision whether to plead guilty.” United
States v. Day, 969 F.2d 39, 44 (3d Cir. 1992) (quoting Hill, 477
U.S. at 56-57). If a defendant raises sufficient allegations that
his counsel’s advice in helping to make that decision was “so
insufficient that it undermined [the defendant’s] ability to make
an intelligent decision about whether to accept the [plea] offer,”
the defendant is entitled to an evidentiary hearing on the merits
of his habeas petition. Id. at 43-44; see also United States v.
Day, 285 F.3d 1167, 1172 (9th Cir. 2002) (holding that the
defendant was prejudiced because his counsel gave him
erroneous advice that led him to proceed to trial, thus precluding
him from receiving a three-level reduction for acceptance of
responsibility).

        In this case, Booth has raised sufficient allegations that
his trial counsel deprived him of the opportunity to make a
reasonably informed decision regarding whether to change his
plea or proceed to trial because his trial counsel failed to inform
him that he could enter an open plea. As a result, Booth was
potentially subject to an increase of 19 to 30 months
imprisonment based upon his trial counsel’s failure to advise
him about all possible plea options. These allegations, which
have not been rebutted by the declaration of Booth’s trial
counsel, may support Booth’s claim. Thus, the District Court
erred in denying Booth’s habeas petition without holding an
evidentiary hearing.

                               IV.

        For the reasons set forth above, we conclude that Booth
is entitled to an evidentiary hearing on the merits of his habeas

                                18
claim. Accordingly, we will reverse and remand the decision of
the District Court for further proceedings consistent with this
opinion.




                              19
