United States v. Benford ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-50210
Plaintiff-Appellee, D.C. No.
v.  CR-05-00010-DOC-
CURTIS JEFFERY BENFORD, 01
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted
June 1, 2009—Pasadena, California
Filed August 3, 2009
Before: Pamela Ann Rymer, Susan P. Graber, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Graber
10103
UNITED STATES v. BENFORD 10105
COUNSEL
Tarik S. Adlai, Law Offices of Tarik S. Adlai, Pasadena, Cali-
fornia, for the defendant-appellant.
Anne C. Gannon, Assistant United States Attorney, Santa
Ana, California, for the plaintiff-appellee.
OPINION
GRABER, Circuit Judge:
Defendant Curtis Jeffery Benford appeals his conviction
and resulting 147-month sentence for armed robbery. We
hold: (1) the absence of defense counsel from a short pretrial
conference at which the pre-existing trial date was confirmed
and at which nothing else of substance happened did not con-
stitute per se ineffective assistance of counsel in violation of
the Sixth Amendment; and (2) the sentencing court’s incorpo-
ration of a “brandished” finding in the presentence report and
10106 UNITED STATES v. BENFORD
the court’s statement at sentencing that the defendant had
“turned and pointed the handgun at [the teller],” which was
“an absolutely harrowing experience for the victims,” sufficed
to support application of the seven-year minimum sentence
provided for in 18 U.S.C. § 924(c)(1)(A)(ii). We therefore
affirm.
FACTUAL AND PROCEDURAL HISTORY
On December 29, 2004, a man robbed a Bank of America
branch in East Brea, California. The robber left with substan-
tial amounts of cash—and, unbeknownst to him, with an elec-
tronic tracking device. Police detected the tracking device’s
signal and attempted to stop the motor vehicle carrying the
device. The vehicle did not stop, and a high-speed chase
ensued. Eventually, police managed to stop the vehicle, and
they then apprehended the driver and the passenger, who both
had fled on foot. A bank teller identified the passenger,
Defendant here, as the robber.
The government jointly indicted Defendant on one count of
armed robbery, in violation of 18 U.S.C. § 2113(a), (d)
(“count one”), and one count of using or carrying a firearm
during a crime of violence, in violation of 18 U.S.C. § 924(c)
(“count two”), and Michael Jerome King, the driver of the
vehicle, of aiding and abetting the armed robbery. At a post-
indictment arraignment hearing, the district court scheduled a
pretrial status conference for February 28, 2005, and set the
trial for March 8, 2005.
On February 28, 2005, the district court conducted the
scheduled pretrial status conference. Defendant’s counsel was
“on his way” but did not arrive in time for the conference. All
other interested parties—the government’s lawyer, King’s
lawyer, and both defendants—attended. None of the partici-
pants had any issues to resolve. The government’s lawyer and
King’s lawyer stated that the previously scheduled trial date
of March 8 remained acceptable. The government’s lawyer
UNITED STATES v. BENFORD 10107
did say, however, that he had heard that Defendant’s lawyer
had discussed with an Assistant United States Attorney the
possibility of seeking a different trial date but that he person-
ally didn’t “know anything beyond that.” In the absence of
any further information, the court noted that “the matter will
proceed to trial on the date of March 8th when it’s presently
set.” At no time—either before the status conference or after
—did Defendant’s lawyer request a continuance of the trial
date. The trial began, as scheduled, on March 8.
The jury found Defendant guilty of both counts. The court
sentenced Defendant to 147 months’ imprisonment: 63
months on count one and 84 months on count two, to be
served consecutively. Defendant timely appeals his conviction
and sentence.
STANDARDS OF REVIEW
We review de novo whether a defendant received ineffec-
tive assistance of trial counsel. United States v. Benlian, 63
F.3d 824, 826 & n.3 (9th Cir. 1995). As discussed below,
however, we ordinarily do not review ineffective assistance of
counsel claims on direct appeal.
We review for plain error claims of procedural error at sen-
tencing raised for the first time on appeal. United States v.
Autery, 555 F.3d 864, 873 (9th Cir. 2009).
DISCUSSION
A. Ineffective Assistance of Counsel
Defendant argues that we must reverse his conviction
because he received ineffective assistance of counsel.1 In par-
1
Defendant also challenges his conviction on the ground that the jury
instructions were erroneous. Because Defendant failed to object at trial,
we review for plain error. United States v. Tirouda, 394 F.3d 683, 688 (9th
Cir. 2005). The jury instructions followed the Ninth Circuit Model Jury
Instructions and required the jury to find all the statutory elements of the
crime. There was, therefore, no error, plain or otherwise.
10108 UNITED STATES v. BENFORD
ticular, Defendant claims that his counsel was unfamiliar with
the physical evidence, failed to request a continuance, failed
to interview key percipient witnesses, failed to subpoena ade-
quately another witness, failed to research the jury instruc-
tions adequately, failed to object to the jury instructions,
failed to conduct sufficient discovery, and failed to consult
with Defendant adequately.
“As a general rule,” we do not review ineffective assistance
of counsel claims on direct appeal. United States v. Jeronimo,
398 F.3d 1149, 1155 (9th Cir. 2005).
The rationale for our general rule . . . is that inef-
fectiveness of counsel claims usually cannot be
advanced without the development of facts outside
the original record. Stated another way, a challenge
to effectiveness of counsel by way of a habeas cor-
pus proceeding is preferable as it permits the defen-
dant to develop a record as to what counsel did, why
it was done, and what, if any, prejudice resulted.
We have recognized two extraordinary exceptions
to this general rule: We have permitted ineffective
assistance claims to be reviewed on direct appeal in
the unusual cases (1) where the record on appeal is
sufficiently developed to permit determination of the
issue, or (2) where the legal representation is so
inadequate that it obviously denies a defendant his
Sixth Amendment right to counsel.
Id. at 1156 (alterations, internal quotation marks, and citations
omitted).
Most of Defendant’s arguments fall plainly within the
“general rule” and do not constitute an “extraordinary excep-
tion” or present an “unusual case.” The factual record on
direct appeal is insufficient to assess “what counsel did, why
it was done, and what, if any, prejudice resulted.” Id. We
UNITED STATES v. BENFORD 10109
therefore decline to address all of the ineffective assistance of
counsel claims except one: that the undisputed absence of
Defendant’s lawyer from the pretrial status conference was
per se ineffective assistance of counsel because the confer-
ence was a “critical stage” of the trial. Defendant asserts that
we may review this claim on direct appeal because no factual
record need be developed; that is, this claim falls within the
exception in which “the record on appeal is sufficiently devel-
oped to permit determination of the issue.” Id. For the reasons
below, we agree with Defendant that we may review this
claim on direct appeal, but we disagree that the pretrial status
conference here was a “critical stage.”
Two important observations lead us to conclude that we
may review this claim on direct appeal. First, the record on
appeal is clear—and the government does not dispute—that
Defendant’s counsel was absent from the pretrial status con-
ference. No further factual development is needed to establish
that point. Second, although most ineffective assistance of
counsel claims require courts to conduct a prejudice inquiry,
see generally Strickland v. Washington, 466 U.S. 668 (1984),
a complete denial of counsel at a critical stage does not. See
Musladin v. Lamarque, 555 F.3d 830, 836 (9th Cir. 2009)
(“[C]ourts are ‘require[d] . . . to conclude that a trial is unfair
if the accused is denied counsel at a critical stage of his
trial.’ ” (second alteration in original) (quoting United States
v. Cronic, 466 U.S. 648, 659 (1984)). Because prejudice is
presumed, no factual development is needed on this point
either. We turn, then, to the question whether the pretrial sta-
tus conference in this case was a “critical stage.”
“The Supreme Court has not provided a definitive list of
Cronic ‘critical stages.’ ” Id. at 839. But the Court’s cases
provide several examples of critical stages. See Montejo v.
Louisiana, 129 S. Ct. 2079, 2085 (2009) (post-indictment
interrogation); Iowa v. Tovar, 541 U.S. 77, 81 (2004) (entry
of a guilty plea); Gardner v. Florida, 430 U.S. 349, 358
(1977) (sentencing); United States v. Wade, 388 U.S. 218,
10110 UNITED STATES v. BENFORD
236-37 (1967) (post-indictment lineup); see also Frantz v.
Hazey, 533 F.3d 724, 743 (9th Cir. 2008) (en banc) (consider-
ation of a jury note). Examples of stages that are not critical
include the taking of a handwriting exemplar, Gilbert v. Cali-
fornia, 388 U.S. 263, 267 (1967), and a post-indictment pho-
tographic lineup, United States v. Ash, 413 U.S. 300 (1973).
See also Hovey v. Ayers, 458 F.3d 892, 902 (9th Cir. 2006)
(mid-trial hearing on the competency of defendant’s lawyer).
[1] “A critical stage is any ‘stage of a criminal proceeding
where substantial rights of a criminal accused may be affect-
ed.’ ” Hovey, 458 F.3d at 901 (quoting Mempa v. Rhay, 389
U.S. 128, 134 (1967)).
[W]e have distilled a three-factor test for determin-
ing what constitutes a critical stage. We consider
whether: (1) failure to pursue strategies or remedies
results in a loss of significant rights, (2) skilled coun-
sel would be useful in helping the accused under-
stand the legal confrontation, and (3) the proceeding
tests the merits of the accused’s case. The presence
of any one of these factors may be sufficient to ren-
der a stage of the proceedings “critical.”
Id. (internal quotation marks and citation omitted).2
[2] The pretrial status conference in this case implicates
2
In Musladin, we did not mention the Hovey three-part test but consid-
ered, instead, whether the stage more generally had “ ‘significant conse-
quences for the accused.’ ” 555 F.3d at 839 (quoting Bell v. Cone, 535
U.S. 685, 696 (2002)). We do not read Musladin as a departure from
Hovey but simply as a more general formulation of the test. Nothing in
Musladin suggests that it intended to displace the Hovey three-part inquiry
and, of course, Musladin could not overrule Hovey because there has been
no inconsistent intervening Supreme Court precedent. See generally Miller
v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc). But we note
that we would reach the same conclusion under Musladin’s more general
“significant consequences” test, for the same reasons as stated in text.
UNITED STATES v. BENFORD 10111
none of those “factors.” Nothing significant occurred at the
pretrial status conference. It is true that, had he attended,
Defendant’s lawyer could have asked for a continuance dur-
ing the conference. But, just as easily, he could have moved
for a continuance before the conference or after it. Nothing in
the record suggests that the district court would not have
entertained such a motion, had one been filed, nor that his
chances for a continuance were better at the status conference
than they were either before or after the conference.
[3] Because nothing other than confirming the pre-existing
trial date occurred at the conference, there was no “loss of sig-
nificant rights.” Hovey, 458 F.3d at 901. There also was no
“legal confrontation,” so counsel would not have been “useful
in helping the accused understand” the proceeding. Id. (inter-
nal quotation marks omitted). Finally, the hearing plainly did
not “test[ ] the merits of the accused’s case.” Id.[4] Unlike the stages found to be critical by the Supreme
Court and by us, this particular status conference had nothing
to do with the merits of Defendant’s case and did not result
in the resolution of any issue that could not easily have been
altered in the future. We therefore hold that there was no vio-
lation of Defendant’s Sixth Amendment right to counsel on
the narrow question of the claimed complete denial of counsel
at a critical stage.3 We limit our holding to what happened
(and what did not happen) in this case; we do not hold that a
status conference never can be a critical stage, but only that
this one was not. Additionally, because we address here only
3
To the extent that Defendant argues more generally that his counsel
should have filed a motion to continue the trial date, that claim is appropri-
ate only for collateral review. See Jeronimo, 398 F.3d at 1155. Counsel
may have had a strategic reason for not moving for a continuance; for
instance, Defendant might have declined to waive his right to a speedy
trial, counsel might have thought that the government’s case would be less
well presented if the trial took place quickly, or the like. In addition to
exploring why counsel did not ask for a continuance, a habeas corpus pro-
ceeding would examine whether any prejudice resulted. See id. at 1156.
10112 UNITED STATES v. BENFORD
Defendant’s claim that the absence of his counsel at the status
conference constitutes per se ineffective assistance of counsel,
he may bring all other claims in a habeas proceeding, the
validity of which we do not consider here.
B. Sentencing
[5] Defendant argues that the district court’s imposition of
seven years’ imprisonment for count two, the violation of 18
U.S.C. § 924(c), is in error. Section 924(c)(1)(A) states:
Except to the extent that a greater minimum sen-
tence is otherwise provided by this subsection or by
any other provision of law, any person who, during
and in relation to any crime of violence or drug traf-
ficking crime (including a crime of violence or drug
trafficking crime that provides for an enhanced pun-
ishment if committed by the use of a deadly or dan-
gerous weapon or device) for which the person may
be prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such
crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or
drug trafficking crime—
(i) be sentenced to a term of imprisonment of not
less than 5 years;
(ii) if the firearm is brandished, be sentenced to a
term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to
a term of imprisonment of not less than 10 years.
Defendant argues that, because neither the jury nor the judge
made a finding that he “brandished” the firearm, the district
court was required to impose a five-year sentence under sub-
UNITED STATES v. BENFORD 10113
section (i), rather than the seven-year sentence under subsec-
tion (ii) that the district court actually imposed.
[6] Defendant is mistaken to the extent that he argues that
the jury had to make the finding that he brandished a firearm.
Under settled law, the judge was authorized to make the
“brandished” finding as a sentencing enhancement. See Har-
ris v. United States, 536 U.S. 545, 551-52 (2002) (holding
that, under § 924(c), “brandishing” a firearm is a sentencing
factor, not an element of the crime, and that allowing a judge
to make that finding did not violate the defendant’s constitu-
tional rights).
[7] The more difficult question here concerns whether the
district court actually made the necessary “brandished” find-
ing. “[T]he term ‘brandish’ means, with respect to a firearm,
to display all or part of the firearm, or otherwise make the
presence of the firearm known to another person, in order to
intimidate that person, regardless of whether the firearm is
directly visible to that person.” 18 U.S.C. § 924(c)(4). The
presentence report (“PSR”) recommended that the district
court apply subsection (ii) of the statute, because Defendant
brandished a firearm, and that the district court impose the
minimum sentence (which is also the guideline sentence) of
seven years. The district court did just that and expressly “ad-
opt[ed]” the relevant sections of the PSR “as the Court’s own
findings.” Additionally, the court found that Defendant
“turned and pointed the handgun at [the teller] . . . . This has
to be an absolutely harrowing experience for the victims
involved.” See also Jury Instructions (requiring the jury to
find that Defendant “intentionally made a display that reason-
ably caused the bank teller . . . to fear bodily harm by using
a dangerous weapon”). Those findings plainly encompass a
finding that Defendant brandished a firearm. Importantly,
Defendant did not object to the PSR or to the district court’s
sentence. In conclusion, the district court adequately made the
necessary “brandished” finding.
10114 UNITED STATES v. BENFORD
We are mindful of our recent opinion in United States v.
Carter, 560 F.3d 1107, 1114 (9th Cir. 2009). There, we
reviewed a factual finding by the sentencing court that was
“ambiguous” because, on appeal, it was unclear whether the
district court found that Defendant “brandished” a firearm or
simply “used” a firearm (which would warrant only a five-
year sentence under subsection (i)). Id. In light of the ambigu-
ity, we held:
Because it is unclear whether the district court found
the firearm was brandished, we must vacate the
seven-year sentence and remand for re-sentencing on
the charge of violation of 18 U.S.C. § 924(c). The
trial judge, rather than this court, is in a better posi-
tion to make the determination whether the firearm
was “used” or “brandished.” The trial judge must
make this determination and state it clearly on the
record.
Id. Here, however, the district court’s finding is unambiguous.
The district court adequately found that Defendant brandished
the firearm.4
AFFIRMED.
4
Even if the district court erred by failing to state expressly on the
record in so many words that Defendant “brandished” a firearm, we would
not reverse the sentence, because the plain-error standard would not be
met. The alleged error was not “plain” and did not affect Defendant’s sub-
stantial rights. The jury findings, the PSR’s findings, and the district
court’s findings clearly encompassed an express finding that Defendant
“brandished” a firearm.