 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 14, 2013                     Decided July 9, 2013

                        No. 10-3004

                UNITED STATES OF AMERICA,
                        APPELLEE

                              v.

                   ALFRED L. THOMPSON,
                       APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:08-cr-00205-1)


    Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.

    Patricia A. Heffernan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and Elizabeth Trosman and
Elizabeth H. Danello, Assistant U.S. Attorneys. Stephen J.
Spiegelhalter, Assistant U.S. Attorney, entered an appearance.

    Before: HENDERSON, GRIFFITH, and KAVANAUGH, Circuit
Judges.
                                2
    Opinion for the Court filed by Circuit Judge GRIFFITH.

     GRIFFITH, Circuit Judge: It is the law of this circuit that we
remand to the district court any claim of ineffective assistance
of counsel first raised on direct appeal that we cannot readily
resolve on the record before us. Applying our precedent, we
remand one of the appellant’s claims and deny the other.

                                 I

     In June 2008, the police arrested Alfred Thompson after a
foot chase. During the chase, Thompson tossed aside, but the
police later found, a bag containing 53.6 grams of crack
cocaine and 4 grams of marijuana. In July 2008, Thompson
was indicted for unlawful possession with intent to distribute
fifty grams or more of crack, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A)(iii) (2006), and possession of marijuana,
in violation of 21 U.S.C. § 844(a). The crack count carried a
statutory mandatory minimum prison sentence of ten years.

     Shortly after Thompson’s indictment, the government
brought separate murder charges against him in D.C. Superior
Court stemming from a shooting in November 2007. The
government and Thompson initially agreed to stay proceedings
on the drug charges until the murder prosecution ran its course,
but delays in the murder case caused the government to push
ahead to trial on the drug charges in October 2009.

      Just six days before trial, the government filed an
information under 21 U.S.C. § 851 describing a prior felony
drug conviction on Thompson’s record, which doubled the
mandatory minimum on the crack count to twenty years. At
trial, the jury returned guilty verdicts on all counts, and the
                                3
district court sentenced Thompson to the mandatory minimum
prison term in January 2010. 1

    Thompson now appeals his sentence, claiming he was
denied the effective assistance of counsel guaranteed by the
Sixth Amendment. We take jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a).

                                II

     To prevail on a claim of ineffective assistance of counsel,
a party must show that his lawyer’s performance was deficient
in a way that prejudiced his case. Strickland v. Washington,
466 U.S. 668, 687 (1984). Establishing deficient performance
requires a showing that “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. To establish
prejudice, the defendant must show “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.” Id. at 694.

     Under this circuit’s precedent, “where a defendant raises a
‘colorable and previously unexplored’ ineffective assistance
claim on appeal,” we remand for further district court
proceedings “unless the ‘record alone conclusively shows that
the defendant either is or is not entitled to relief.’” United
States v. Bell, 708 F.3d 223, 225 (D.C. Cir. 2013) (quoting



    1
      Shortly thereafter, Thompson’s murder trial began in Superior
Court. He was convicted. See Docket, United States v. Thompson,
2008 CF1 17330 (D.C. Sup. Ct.).
                                4
United States v. Rashad, 331 F.3d 908, 908, 909-10 (D.C. Cir.
2003)). 2

     Thompson first claims that the prosecution made plea
offers that his counsel failed to pass along to him before they
expired. According to Thompson, in April 2009, the
government offered to dismiss the marijuana count in
exchange for his guilty plea on the crack count. He also claims
that on the eve of trial, the prosecutor offered to withdraw the
§ 851 information he had just filed and dismiss the marijuana
count if Thompson pled guilty to the crack count. Had
Thompson accepted either offer, the mandatory minimum he
faced would have been ten years in prison rather than twenty.

     “[D]efense counsel has the duty to communicate formal
offers from the prosecution to accept a plea on terms and
conditions that may be favorable to the accused,” and a failure
to do so may constitute ineffective assistance of counsel.
Missouri v. Frye, __ U.S. __, 132 S. Ct. 1399, 1408 (2012).
Counsel renders constitutionally deficient performance if he
“allow[s an] offer to expire without advising the defendant or
allowing him to consider it.” Id. To establish prejudice, a
defendant “must demonstrate a reasonable probability [that he]
would have accepted the earlier plea offer” had he been
advised of its existence. Id. at 1409. He must also show “a
reasonable probability the plea would have been entered
without the prosecution canceling it or the trial court refusing
to accept it . . . .” Id.


    2
       In its opposition brief, the government argues that the full
court should overturn our precedent in favor of the view of those
circuits that hold that ineffective assistance of counsel claims
generally should be heard only on collateral review. Appellee’s Br.
at 24-41. As a three-judge panel, of course, we are bound to apply
existing precedent.
                                5
     We need not linger over whether the record before us is
sufficient to resolve this claim, for both Thompson and the
government agree that it is not. We therefore remand “for
whatever proceedings are necessary to determine whether
[Thompson] was denied his constitutional right to effective
assistance of counsel, which may . . . include an evidentiary
hearing” in the district court’s discretion. Bell, 708 F.3d at 226.

     Thompson next claims that his lawyer’s ineffective
assistance deprived him of the chance to benefit from the Fair
Sentencing Act, which introduced sweeping reforms in crack
sentencing. Pub. L. No. 111-220, 124 Stat. 2372 (2010). As
relevant here, the Act lowered the mandatory minimum from
twenty years to ten for defendants like Thompson with prior
felony drug convictions whose crimes involved fifty grams or
more of crack. See 21 U.S.C. § 841(b)(1)(B)(iii).

     When Thompson was sentenced, passage of the Act was
seven months away. The bill was still being debated in
Congress. At the sentencing hearing, Thompson’s lawyer
asked orally for a continuance until after the bill had become
law. Tr. 1/5/10, at 3-5. The district court denied the motion. Id.
at 7-8. According to Thompson, had his lawyer filed a written
motion for a continuance prior to the hearing, and in that
motion made a series of arguments crafted by Thompson’s new
counsel on appeal, it is likely that the district court would have
waited to sentence him under the more lenient provisions of the
Act. See Dorsey v. United States, __ U.S. __, 132 S. Ct. 2321,
2326 (2012) (holding that the Act applies in all sentencing
proceedings after its passage); see also United States v. Fields,
699 F.3d 518, 522 (D.C. Cir. 2012) (declining to extend the
Act’s retroactivity to defendants sentenced prior to its
enactment).
                               6
      We find Thompson’s claim meritless and deny it on the
record before us. See, e.g., United States v. Moore, 703 F.3d
562, 574-75 (D.C. Cir. 2012). Even assuming – for the sake of
argument alone – some legally significant distinction between
the oral motion made at the sentencing hearing and a written
motion made in advance, such a distinction made no difference
in this case. The district court denied the continuance request
on its merits. Tr. 1/5/10, at 7-8. As the district court clearly
explained, it was not willing to grant a continuance and stay
sentencing “indefinitely” to await legislation that showed no
“imminent likelihood of success.” Id. at 7; see also id. at 6
(“[F]or me to wait for Congress to do something on this subject
. . . it could be St. Swithen’s Day. It could be a decade from
now, it could be never.”). That decision was well within the
scope of the district court’s discretion. See Fields, 699 F.3d at
522-23. Thompson argues that his lawyer could have allayed
the district court’s concerns by suggesting that the continuance
extend only until after trial in the Superior Court murder case.
This is a red herring. As the government points out, Thompson
was convicted in that case little more than a month later – and
still half a year in advance of the Act’s passage. See Docket,
United States v. Thompson, 2008 CF1 17330.

                               III

    We remand to the district court for further proceedings
consistent with this opinion to determine whether Thompson
was denied the effective assistance of counsel.

                                                    So ordered.
