          United States Court of Appeals
                     For the First Circuit


No. 09-1690

                         JOSEPH PARSLEY

                     Petitioner, Appellant,

                               v.

                    UNITED STATES OF AMERICA,

                      Respondent, Appellee.


         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

           [Hon. D. Brock Hornby, U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
                Lipez and Howard, Circuit Judges.



     Jeanne M. Kempthorne for appellant.
     Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.


                          May 17, 2010
               LYNCH, Chief Judge. Joseph Parsley was convicted for his

role in a massive drug importation and distribution conspiracy in

Maine.    He was sentenced to eighty-seven months' imprisonment.

Later, he filed a motion under 28 U.S.C. § 2255 in the district

court to vacate his sentence, on the ground that he had not been

properly advised by his trial counsel on the option of not going to

trial    but    instead    entering      an    "open"   guilty     plea    and   then

contesting at sentencing the quantity of drugs attributable to him.

This, Parsley argues, was a constitutionally deficient performance,

under the first prong of Strickland v. Washington, 466 U.S. 668

(1984). Parsley claims that because he did not fully consider this

option, and indeed because trial counsel did not urge it, he did

not plead and so was denied the opportunity for a two-level

reduction      for   acceptance     of   responsibility       in   his    Sentencing

Guidelines       offense   level.        We    affirm   the    district      court's

conclusion that trial counsel did not render ineffective assistance

on these facts, which are largely uncontested and not clearly

erroneous.

                                         I.

               We take the facts as found by the district court and

based on the uncontested portions of the record.                 To the extent any

of the district court's findings of fact are in dispute, we

conclude there was no clear error.




                                         -2-
            On October 13, 2005, Parsley was indicted along with ten

other defendants for, inter alia, conspiracy to import marijuana

from   a   place    outside   the   United   States,    under     21   U.S.C.

§§ 960(b)(2), 963, and conspiracy to distribute and possess with

the intent to distribute marijuana, under 21 U.S.C. §§ 841, 846.

The conspiracy lasted from November 2003 to June 2005 and involved

the importation of marijuana from Canada.              Parsley's role was

limited to that of a courier, picking up and transporting the drugs

after the drugs arrived in the United States.

            Parsley was arrested in New York on November 4, 2005, and

was initially represented by a New York lawyer.            This lawyer in

turn asked trial counsel, a Maine attorney with about twenty years

of experience specializing in criminal defense, to act as local

counsel in proceedings in the district of Maine.             Parsley paid

trial counsel a flat fee, which was not contingent on whether the

case went to trial.

            Plea negotiations followed. Both sides believed that the

government had a strong case against Parsley. In the negotiations,

the government insisted that Parsley accept responsibility for at

least 750 kilograms of marijuana if there was to be a plea

agreement.     Parsley refused.      That 750 kilograms of marijuana

corresponded to the total amount of marijuana that had been seized;

the government believed it could prove a much larger amount if put

to   its   proof.    Having   reviewed    discovery   materials    with   his


                                    -3-
lawyers, Parsley insisted that he was responsible for a lesser

quantity of drugs than 750 kilograms.               The government refused to

lower    the    drug    quantity    in    the   bargaining,    and    Parsley   was

counseled by the New York lawyer to take the plea agreement.

               As these plea negotiations broke down, Parsley decided to

proceed with Maine counsel alone.               Parsley believed that the New

York lawyer simply "wanted to get rid of the case" and was not

willing to make further efforts without receiving more money. When

he agreed to take the lead role, the Maine trial counsel decided

not to ask for additional compensation.

               At the time trial counsel took over the case, Parsley was

determined to take the case to trial if he could not get a

satisfactory plea agreement with the government.                     Parsley's New

York    lawyer    had   missed     some   deadlines   on    filing     suppression

motions, which trial counsel immediately turned to addressing.

Maine counsel's understanding was that at this point Parsley had no

interest in pleading guilty, and there was, as a result, only

limited further discussion about a guilty plea.

               Nonetheless,   counsel       did   discuss     with    Parsley   his

different options and the possible sentencing ramifications of

those choices.         Counsel explained the possibility of receiving a

sentencing reduction for acceptance of responsibility.                     Counsel

also discussed with Parsley the possibility of making an open




                                          -4-
guilty plea and then contesting the drug quantity numbers at

sentencing.

            Having    reviewed     the     government's     evidence,     counsel

advised Parsley that challenging the drug quantity at sentencing

would be a risky strategy because the government would only have to

prove    drug    quantity    under       the   preponderance-of-the-evidence

standard.     Trial counsel believed that the government could prove

a larger drug quantity than 750 kilograms.                   He also informed

Parsley that forcing the government to prove drug quantity could be

enough   to     prevent    Parsley    from     receiving    an   acceptance-of-

responsibility reduction.            Counsel testified that although he

always discussed with his clients the possibility of pleading

guilty and contesting the drug quantity at sentencing, "I don't

know that I would ever recommend for somebody to do it."

            Trial    counsel      did,    however,   have      some   difficulty

convincing      Parsley    that    pleading     in   federal     courts    worked

differently from what Parsley had experienced in New York state

court.   Parsley believed that he could agree with prosecutors to a

specific sentence.        Counsel testified that Parsley never believed

him that in federal court, even after reaching an agreement with

the government, the district court itself would make its own

findings on drug quantity and the appropriate sentence.

            At some point before trial, the federal prosecutor on the

case held a "reverse proffer" with Parsley and counsel, during


                                         -5-
which   the    prosecutor   presented    to   Parsley   the   evidence   the

government would introduce at trial.            Parsley had requested a

meeting with the federal prosecutor because he wanted to negotiate

a lower sentence, and trial counsel believed the meeting would help

Parsley understand the reality of his situation.

              The federal prosecutor held the meeting because he felt

that the evidence in the case was overwhelming and wanted to make

sure that Parsley understood the consequences of going to trial.

At this point, all of the other defendants in the conspiracy had

pled guilty.     The prosecutor made clear to Parsley in this meeting

that the government was not willing to negotiate a lower drug

quantity and that if Parsley elected to go to trial, the government

could prove an even larger amount.             The prosecutor also told

Parsley that if Parsley's concern was only the quantity with which

he was being charged, Parsley had the option of pleading guilty and

then contesting the quantity at sentencing.

              Parsley later testified that following the meeting he was

confused by the prosecutor's statement that Parsley could plead

guilty and just contest the drug quantity at sentencing.                 But

Parsley apparently believed trial counsel's advice regarding the

risks associated with this course of action.        Although Parsley had

earlier reconsidered pleading guilty due to pressure from his

family, on realizing that he could not convince the government to




                                   -6-
lower his sentence by lowering the drug quantity by agreement,

Parsley was determined to go to trial.

            Parsley also testified that he decided to go to trial in

order to contest the drug quantity, but the district court rejected

this claim. Trial counsel testified he would never advise a client

to follow such a strategy and that he did not do so in this case,

and the district court credited this testimony.

            On December 14, 2006, Parsley was convicted by a jury on

all counts following a four-day trial.            Parsley's counsel's two-

pronged    trial   strategy   was   to   attack    the   credibility   of   the

government's witnesses and to portray Parsley in as positive a

light as possible. Consistent with trial counsel's testimony about

his advice to Parsley, the defense did not at trial attempt to

contest the quantity of drugs involved in the case.

            Because of disagreements with trial counsel over how to

approach his sentencing, Parsley sought assignment of other counsel

and was provided with representation from the local federal public

defender's office at his June 8, 2007, sentencing hearing. At that

hearing,    Parsley   sought    a   sentence      of   seventy   months;    the

government sought a sentence of ninety-seven months, which was at

the bottom of the range recommended in Parsley's presentence report

("PSR").

            Parsley's PSR found that Parsley was responsible for only

428.36 kilograms of marijuana, based on the quantity Parsley


                                     -7-
personally transported, rather than the conspiracy-wide amount on

which       the    federal   prosecutor    had   relied   during   the   reverse

proffer.1         The PSR also recommended a sentencing level reduction

for Parsley's minor role in the conspiracy. The government did not

challenge either recommendation.

                  At sentencing, the federal public defender for Parsley

acknowledged that it was a very rare case in which a defendant

benefitted from trying to dispute sentencing issues during trial.

He said his client was truly remorseful, and he attempted to

reconcile the tension between that remorse and Parsley's failure to

plead guilty by saying his client may have been confused that a

plea agreement was needed just to have entered a plea.                       He

acknowledged that his client had indeed met with the prosecutor who

had laid out the government's potential case against Parsley.                At

no time did the federal public defender say Parsley's trial counsel

had rendered ineffective assistance or ask the court not to go

forward with sentencing.

                  The district court adopted both PSR recommendations and

departed downward one level from the PSR's recommended criminal

history category.            The court sentenced Parsley to eighty-seven




        1
          The government tells us in a footnote that Parsley's
sentence ended up more or less where it would have been if Parsley
had pled guilty to 750 kilograms but then received the two level
reduction for acceptance of responsibility. The government uses
this to argue that Parsley suffered no prejudice in any event.

                                          -8-
months' imprisonment, at the bottom of his Sentencing Guidelines

range.

            Nine months later, Parsley filed a motion, pursuant to 28

U.S.C. § 2255, to vacate, set aside, or correct his sentence.                This

motion raised a number of claims, including an argument that trial

counsel had provided ineffective assistance, causing Parsley to go

to trial rather than make a guilty plea that would have provided a

basis for Parsley to argue for a two-level sentencing reduction for

acceptance of responsibility.          On November 13, 2008, a magistrate

judge recommended that all of Parsley's claims be denied.

            The district judge affirmed the Recommended Decision in

part, but it concluded that if Parsley had pled guilty and if the

court    had     granted     Parsley     an     acceptance-of-responsibility

reduction,     that    combination     might    have   affected    the    ultimate

sentence.      On this view, the precise advice given to Parsley on

pleading    guilty     was   material.        The   district    court    therefore

remanded    to   the   magistrate      judge    for    an   evidentiary   hearing

"regarding the advice [counsel] gave to Parsley prior to trial."

            That evidentiary hearing before the magistrate judge

occurred on March 19, 2009.          Parsley testified and the government

presented two witnesses, Parsley's trial counsel and the federal

prosecutor.      In a March 27, 2009, Proposed Findings of Fact and

Recommended Decision, the magistrate judge concluded that Parsley

had been adequately informed of his options and that he had


                                        -9-
ultimately been the person who decided to go to trial.                          As a result

there      was    no    ineffective       assistance       by   trial   counsel.         The

magistrate judge recommended denial of Parsley's motion to vacate

and   that       no    certificate    of    appealability        should      issue.      The

district court adopted both recommendations.2

                                             II.

                 On an appeal from the denial of a § 2255 motion following

an    evidentiary        hearing     we    review    the    district      court's      legal

determinations de novo and the court's findings of fact for clear

error.      Peralta v. United States, 597 F.3d 74, 79 (1st Cir. 2010);

Awon v. United States, 308 F.3d 133, 140 (1st Cir. 2002).

                 Criminal    defendants        are     "entitled        to      'effective

assistance of competent counsel'" before deciding whether to plead

guilty.          Padilla v. Kentucky, 130 S. Ct. 1473, 1480-81 (2010)

(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)).                             "Under

Strickland, we first determine whether counsel's representation

'fell below an objective standard of reasonableness.'" Id. at 1482

(quoting Strickland, 466 U.S. at 688).                     We then inquire "whether

'there      is    a    reasonable     probability      that,      but     for    counsel's

unprofessional errors, the result of the proceeding would have been

different.'"           Id. (quoting Strickland, 466 U.S. at 694).                       With

regard to plea agreements, counsel has a "critical obligation . . .



       2
                 This court granted a certificate of appealability in July
2009.

                                            -10-
to advise the client of 'the advantages and disadvantages of a plea

agreement."      Id. at 1484 (quoting Libretti v. United States, 516

U.S. 29, 50-51 (1995)).        Our "review of counsel's performance must

be deferential, and reasonableness must be considered in light of

'prevailing professional norms.'" Peralta, 597 F.3d at 79 (quoting

Strickland, 466 U.S. at 688).

            Parsley concedes the accuracy of the finding that trial

counsel at least briefly discussed with Parsley the option of

entering    an   open   plea   and    contesting     the   drug   quantities    at

sentencing in order to argue for a downward adjustment based on

acceptance of responsibility.          He argues that counsel nonetheless

provided ineffective assistance by counseling against the option,

that     this    counseling     effectively        foreclosed     Parsley     from

considering it, and that counsel failed to provide Parsley detailed

information about how a decision to go to trial would impact his

sentence.        Parsley   further       argues     that   it     was   counsel's

responsibility, not merely to advise of the option, but to urge

Parsley to pursue a strategy of pleading without an agreement and

then contesting the drug amounts at sentencing.                    Parsley also

asserts, based on trial counsel's statement at the evidentiary

hearing, "I don't know that I would ever recommend for somebody to

[plead open and contest the drug quantity at sentencing]," that

counsel advised Parsley based on a "categorical approach" to the

option    and    that   counsel      failed   to   adequately      consider    the


                                       -11-
circumstances of Parsley's case. The magistrate judge and district

court rejected these claims, as do we.

          Based on the facts found by the district court, which are

not clearly erroneous,3 we affirm the district court's finding that

the assistance provided by counsel did not fall below an objective

level of reasonableness. The district court supportably found that

Parsley had been urged by counsel to plead guilty but that he chose

not to do so because he believed he could get a better deal.

Parsley did not believe that in a federal case the prosecutor could

not guarantee him a lower sentence, although he had been told

otherwise.   Counsel reasonably presented to and discussed with

Parsley his options.    Counsel also participated in the reverse

proffer, during which the federal prosecutor explained to Parsley

his options and the weight of the evidence against him.         The

options discussed included the possibility of Parsley pleading

guilty, contesting the drug quantity at trial, and pursuing a

reduction for acceptance of responsibility.      Two lawyers thus

outlined this possibility for Parsley, along with its risks.   That

trial counsel did not urge Parsley to follow such a strategy and,



     3
          Parsley states that he does not contest the district
court's finding of facts as clearly erroneous.      To the extent
Parsley disputes the district court's finding that Parsley knew at
the time that he could have entered an open plea and contested the
drug quantity at sentencing, we conclude that the factual finding
was not clear error. There was ample evidence presented at the
evidentiary hearing that both trial counsel and the federal
prosecutor discussed this option with Parsley.

                               -12-
indeed, recommended against it, did not represent ineffective

assistance.

            The   district   court    correctly   followed   the   law   in

concluding that counsel had made a reasonable strategic choice in

counseling his client. See Strickland, 466 U.S. at 689. Counsel's

recommendations to Parsley were based on his evaluation of the

discovery materials, the strength of the government's case, and his

approximately twenty years of experience as a criminal defense

attorney.     The district court supportably found that counsel

reasonably believed that the government was more than capable of

proving the drug quantity it had alleged and counsel advised

Parsley accordingly.     Counsel reasonably advised Parsley that he

could risk losing the acceptance of responsibility reduction if

Parsley forced the government to prove the actual drug quantity.

As the magistrate judge found,

     [n]o experienced criminal defense attorney would want
     his client to plead guilty and then mount a full blown
     evidentiary challenge to the drug quantities without
     being aware of the limited probability of success, given
     the burden of proof at a sentencing hearing. The risk
     of losing acceptance of responsibility credit existed
     and counsel had the obligation to inform Parsley of that
     fact.

Counsel acted reasonably.

            Parsley argues a red herring: that counsel had adopted a

per se approach that he would never advise a client to enter an

open plea and challenge drug quantity at sentencing.         That per se

approach, he says, is inherently unreasonable and so establishes

                                     -13-
ineffective assistance.     The record does not support his argument.

Counsel's statement was, "I don't know that I would ever recommend

for somebody to [enter an open guilty plea and then contest drug

quantity at sentencing]."    He did not say that he had a categorical

rule against entering such pleas.       Counsel made clear that he

always discussed an open plea as an option with his clients, and in

this case counsel advised Parsley based on the particular evidence

at the government's disposal. Counsel's advice in this case, which

the district court found to be reasonable, was not based on a per

se view that defendants will always lose their sentencing reduction

for acceptance of responsibility if they plead and then challenge

the drug quantity at sentencing.

          That Parsley may wish in hindsight that he had given

greater consideration to the option he rejected does not mean that

he was not properly advised on it.

          The district court's judgment is affirmed.




                                 -14-
