United States v. Melvin Knight ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 17, 2020 Decided December 8, 2020
No. 19-3016
UNITED STATES OF AMERICA,
APPELLEE
v.
MELVIN KNIGHT,
APPELLANT
Consolidated with 19-3017
Appeals from the United States District Court
for the District of Columbia
(No. 1:13-cr-00131-2)
(No. 1:13-cr-00131-1)
Howard B. Katzoff, appointed by the court, argued the
cause for appellant. With him on the briefs was Mary E. Davis,
appointed by the court.
Bryan H. Han, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Jessie K. Liu, U.S.
Attorney, and Elizabeth Trosman, John P. Mannarino, and
Pamela S. Satterfield, Assistant U.S. Attorneys.
2
Before: ROGERS, WILKINS, and KATSAS, Circuit Judges. *
Opinion for the Court by Circuit Judge ROGERS.
Opinion dissenting in part by Circuit Judge KATSAS.
ROGERS, Circuit Judge: In 2013, Melvin Knight and
Aaron Thorpe were arrested for armed robbery and kidnapping.
They were charged by the U.S. Attorney’s Office in the D.C.
Superior Court and offered a generous plea deal by the
Assistant U.S. Attorney: plead guilty to a single count of
assault with a dangerous weapon and no further charges
stemming from these crimes would be filed. Under the D.C.
Superior Court Sentencing Guidelines, the likely sentences
would be between two and six years for each defendant. The
plea offer was wired, however, so both Knight and Thorpe had
to accept it or it would be withdrawn. Thorpe wanted to accept
the plea offer, but Knight, who was erroneously advised by his
counsel that the offer came with ten years in prison and never
advised by his counsel of the sentencing consequences of
rejecting plea the offer, did not. Once they declined the plea
offer, the government dismissed the Superior Court charges
and prosecuted Knight and Thorpe on a ten-count indictment
in federal court. A jury found Knight and Thorpe guilty on all
counts, and the U.S. district court sentenced Knight to more
than 22 years’ imprisonment and Thorpe to 25 years’
imprisonment.
*
Senior Judge Stephen F. Williams was a member of the panel
at the time the case was argued and he participated in its
consideration before his death on August 7, 2020. Judge
Wilkins was randomly selected thereafter to serve as a member
of this panel.
3
On direct appeal, Knight and Thorpe both argued that they
had been denied effective assistance of counsel in violation of
the Sixth Amendment to the U.S. Constitution. This court,
concluding that their claims were “colorable,” United States v.
Knight, 824 F.3d 1105, 1113 (D.C. Cir. 2016), remanded the
case. Following an evidentiary hearing after remand, the
district court denied relief. Although agreeing that Knight’s
counsel’s performance was deficient, the court determined that
Knight had suffered no prejudice. The court rejected Thorpe’s
claim that his counsel was deficient and did not address
prejudice. Knight and Thorpe appeal.
For the following reasons, we reverse in part. Knight
satisfied his burden under both prongs of the standard for an
ineffective assistance of counsel claim. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). First, as the
government acknowledges, the performance by Knight’s
counsel did not meet minimal professional standards. Second,
the district court’s determination that Knight suffered no
prejudice rested on subsidiary factual findings that ignored the
direct effect of his counsel’s deficient performance on Knight’s
ability to intelligently assess his options and therefore were
clearly erroneous. Viewed properly, the contemporaneous
evidence and Knight’s testimony at the evidentiary hearing
sufficed to establish a reasonable probability Knight would
have accepted the plea offer but for his counsel’s ineffective
assistance. In contrast, we agree that Thorpe’s counsel was not
ineffective and there was no violation of his Sixth Amendment
rights. Accordingly, we affirm as to Thorpe and reverse the
denial of Knight’s Sixth Amendment challenge, remanding his
case to the district court to provide a remedy consistent with
this opinion.
4
I.
In January 2013, Knight and Thorpe were involved in an
armed robbery and kidnapping of Edmund Peters. They were
arrested and each was charged with one count of armed
kidnapping in the D.C. Superior Court and appointed separate
counsel. Shortly after their arrest, the Assistant U.S. Attorney
assigned to their cases sent an email to their counsel: If Knight
and Thorpe would plead guilty to one count of assault with a
dangerous weapon (“ADW”), then the government would
agree not to bring additional and more serious charges,
including two counts of armed kidnapping; two counts of
possession of a firearm during a crime of violence; two counts
of obstruction of justice; a second count of assault with a
dangerous weapon, namely assault with a firearm; and one
count of felon in possession of a firearm. The plea offer was
wired, however, allowing the government to dispose of the
charges against both defendants without a trial while
preserving its right to prosecution by trial if both did not accept
the plea offer, which would be withdrawn. In addition, the plea
offer was contingent on Knight and Thorpe also agreeing “[n]ot
to seek to modify the conditions of their release pending the
plea,” meaning that they could not be released from custody
before entering the plea. Id.Knight’s counsel visited Knight in jail but did not mention
the plea offer. The next day, February 1, 2013, the Assistant
U.S. Attorney placed the plea offer on the record and the
Superior Court judge continued the preliminary hearing until
February 19, 2013, to give Knight and Thorpe time to consider
whether to accept the plea offer. In fact, Knight’s counsel’s
lone interaction with Knight about the plea offer was limited to
misinformation. While still in court, Knight asked how much
time the government wanted him to serve for the ADW charge,
and Knight’s counsel told him “[t]en years.” Hearing Tr. 19
5
(May 24, 2017). Ten years was the statutory maximum for
ADW, but the offense had no mandatory minimum and the
sentencing range under the Superior Court Sentencing
Guidelines was 24–72 months (2 to 6 years). Although counsel
told Knight he would visit him in jail to discuss the plea offer
further, he never did. Consequently, the brief and misleading
exchange in open court was the extent of the advice that Knight
received from counsel about the plea offer. Among other
things relevant to the plea offer, Knight was never advised of
the worst-case scenario were he to reject the plea offer, namely
being indicted on additional charges with a greatly increased
sentencing exposure in federal court.
Thorpe’s counsel, by contrast, advised his client of the plea
offer immediately upon learning of it, prior to the appearance
in the Superior Court for the scheduled preliminary hearing.
Counsel also visited Thorpe in jail to discuss the terms of the
plea offer. Their discussion covered the estimated sentencing
range for the ADW charge; potential additional charges that
Thorpe would face if he rejected the plea offer and the
sentencing consequences; and the fact that the plea offer was
wired. Thorpe’s counsel also alerted his client to the fact that
he had learned from Knight’s counsel, as the result of a chance
meeting in the Superior Court, that Knight was not expected to
take the plea. He told Thorp that the trial prosecutor had
refused to unwire the plea so Thorpe could plead separately.
At the February 19 preliminary hearing, Thorpe’s counsel
stated Knight and Thorpe did not intend to accept the plea offer.
The U.S. Attorney’s Office withdrew the plea offer and a trial
date was set. Prior to trial, the Superior Court charges were
dismissed and a federal grand jury returned a ten-count
indictment charging both Knight and Thorpe with six D.C.
Code felony offenses and the federal offense of being a felon
in possession of a firearm. A jury found them guilty as
6
charged, and the district court sentenced Knight to 268 months’
imprisonment (22 years and 4 months) and Thorpe to 300
months’ imprisonment (25 years).
On direct appeal from their convictions, Knight and
Thorpe contended, in part, that each had received ineffective
assistance of counsel in the Superior Court regarding the plea
offer. See Knight, 824 F.3d at 1109. This court determined
that “Knight’s and Thorpe’s claims of ineffective assistance are
colorable” and remanded them to the district court. Id. at 1113.
After a three-day evidentiary hearing, at which Knight and
Thorpe and their counsel testified, the district court denied
relief. Although determining that Knight’s counsel had
performed deficiently, the court concluded that Knight had not
been prejudiced. The court noted the lack of contemporaneous
evidence that Knight would have accepted the plea offer in
view of evidence that Knight (1) was focused on obtaining
pretrial release so that he could be with his wife for the birth of
their child, which would not have been possible if he accepted
the plea offer; (2) had told counsel he wanted to go to trial as
he was hopeful that the victim of the crimes would not testify
against him; and (3) had rejected a plea offer on the federal
charges. The court also determined that Thorpe’s counsel’s
performance was not deficient, rejecting the argument that a
wired plea offer required his counsel to meet with Knight’s
counsel to discuss the plea offer. The court did not address the
issue of prejudice to Thorpe.
Knight and Thorpe appeal, and the court’s review of the
district court’s denial of their ineffective assistance of counsel
claims is de novo. United States v. Abney, 812 F.3d 1079,
1086–87 (D.C. Cir. 2016). The district court’s subsidiary
factual findings are reviewed for clear error. See id. at 1087.
7
II.
“The Sixth Amendment guarantees a defendant the
effective assistance of counsel at ‘critical stages of a criminal
proceeding,’ including when he enters a guilty plea.” Lee v.
United States, 137 S. Ct. 1958, 1964 (2017) (quoting Lafler v.
Cooper, 566 U.S. 156, 165 (2012)). To succeed on a claim of
ineffective assistance of counsel, a defendant must show that
(1) his counsel’s performance was deficient, as judged against
prevailing professional norms under the circumstances, and
(2) the deficient performance was prejudicial. See Strickland,
466 U.S. at 687. To satisfy the prejudice prong, the defendant
must show that there is a reasonable likelihood that the
outcome would have been different had the defendant been
adequately counselled. See Missouri v. Frye, 566 U.S. 134,
147 (2012).
More specifically, where a defendant maintains that his
counsel’s inadequate assistance caused him to proceed to trial
when he would otherwise have accepted a plea offer, prejudice
means that “but for the ineffective advice of counsel there is a
reasonable probability that . . . the defendant would have
accepted the plea and the prosecution would not have
withdrawn it . . . , that the court would have accepted its terms,
and that the conviction or sentence, or both, under the offer’s
terms would have been less severe than under the judgment and
sentence that in fact were imposed.” Lafler, 566 U.S. at 164.
A criminal defendant alleging ineffective assistance of counsel
generally may not rely solely on post hoc testimony to show
that he would have accepted the plea offer if he had been
properly advised. Cf. Lee, 137 S. Ct. at 1967; United States v.
Aguiar, 894 F.3d 351, 361–62 (D.C. Cir. 2018). At least where
a defendant has pled guilty and is seeking to show a reasonable
probability that he would have gone to trial but for counsel’s
ineffectiveness, the Supreme Court has instructed that
8
“[j]udges should . . . look to contemporaneous evidence to
substantiate a defendant’s expressed preferences.” Lee, 137
S. Ct. at 1967. Knight and Thorpe do not suggest that this
principle is inapplicable in their circumstances. Nonetheless,
although contemporaneous evidence of the defendant’s
preferences may inform the prejudice inquiry, a defendant is
not required to have hypothesized, at the time of the plea offer,
that his attorney might be providing inadequate assistance and
state that his decision whether or not to accept a plea offer
would change if that were so. Aguiar, 894 F.3d at 362.
Further, when a plea offer is wired, a defendant attempting
to show prejudice “must establish not only that he would have
taken the plea offer if his counsel had advised him correctly,
but also either that each of his co-defendants would have
accepted their respective plea offers, or that the Government
would have offered [him] an unwired plea.” United States v.
Gaviria, 116 F.3d 1498, 1512 (D.C. Cir. 1997).
A.
The government does not dispute that Knight’s counsel’s
performance was constitutionally deficient for failing to
correctly inform him of the time he would serve for ADW if he
accepted the plea offer. See United States v. Soto, 132 F.3d 56,
59 (D.C. Cir. 1997). Neither does the government dispute that
counsel’s performance was constitutionally deficient for
failing to advise Knight of the worst-case scenario of declining
the plea offer. See Aguiar, 894 F.3d at 361. Nor does the
government dispute that Knight’s co-defendant would have
accepted the wired plea offer had his acceptance not been
foreclosed by Knight’s rejection of the offer. Rather, the
government disputes Knight’s contention that he was
prejudiced by his counsel’s deficient performance. In the
government’s view, Knight has not established Strickland
9
prejudice because he has presented no contemporaneous
evidence to show a reasonable probability that he would have
accepted the plea offer absent counsel’s errors and, in fact, the
contemporaneous evidence that did exist indicated Knight
would not have accepted the plea even if adequately
counselled.
But the government, like the district court, overlooks the
direct negative impact that counsel’s shortcomings had on
Knight’s understanding of his circumstances at the time he was
deciding whether to accept the plea offer. Counsel’s inaccurate
appraisal of pleading to ADW and failure to alert Knight to the
worst-case scenario of rejecting the plea offer left Knight
unable to make an intelligent decision about whether to accept
the plea offer. Knight’s statements and his preferences at the
time he rejected the plea offer must be evaluated in view of his
erroneous understanding of his circumstances. Further, the
government, like the district court, ignores key
contemporaneous evidence suggesting Knight may have
accepted the plea offer had his counsel performed adequately.
For these reasons, the district court’s factual findings
underlying its determination that Knight suffered no prejudice
are clearly erroneous.
First, the Superior Court plea offer was contemporaneous
evidence of a plea offer whose generosity is self-evident from
the prosecutor’s email to Knight’s counsel and Thorpe’s
counsel. The email set forth the terms of the plea offer and the
consequences of its rejection, suggesting that Knight would
have accepted the offer had he understood how favorable it was
to him and how unfavorable his sentencing exposure would be
if he proceeded to trial. The limited exchange that Knight had
with counsel at the time of the Superior Court plea offer,
described below, also suggests that he might have been
amenable to accepting the plea offer even when he wrongly
10
believed it carried a ten-year sentence. Combined with
Knight’s after-the-fact testimony on remand about what he
would have done had he been correctly and adequately advised
by counsel regarding the plea offer, the contemporaneous
evidence before the district court suffices to show a reasonable
probability that he would have accepted the plea offer if he had
been advised of its leniency and the sentencing exposure he
would face as a consequence of rejecting it.
The generosity of the plea offer is underscored by the
significant disparity in sentencing exposure between the plea
offer on the Superior Court charge and the charges that Knight
faced in federal court. The Superior Court plea offer required
that Knight and Thorpe each plead guilty to only a single count
having no statutory minimum sentence, a ten-year maximum,
and a Superior Court Sentencing Guidelines range of two to six
years. By proceeding to trial Knight risked a ten-count
indictment in federal court, dramatically greater sentencing
exposure, and an actual imposed sentence of more than twenty-
two years. The prosecutor’s email to counsel forewarned of
these consequences yet Knight’s counsel never shared that
information with him. Even absent such forewarning, counsel
is obligated to advise a client facing criminal charges of what
the law, including sentencing guidelines, makes “clear” and is
“‘easily determined’ by competent counsel.” Aguiar, 894 F.3d
at 359 (quoting standard announced by Supreme Court in
Padilla v. Kentucky, 559 U.S. 356, 368–69 (2010)); see also
Padilla, 559 U.S. at 365, 370. Because Knight’s counsel did
not render adequate assistance on key considerations before
Knight, Knight was not in a position to appreciate the
generosity of the plea offer or realistically evaluate the
consequences of rejecting it. This significant sentencing
disparity is contemporaneous evidence that Knight would have
accepted the plea offer had counsel correctly apprised him of
how favorable it was and of the sentencing exposure he would
11
face if he declined the offer and went to trial. See Gaviria, 116
F.3d at 1513. Indeed, both the government and the district
court characterized the plea offer as “incredibly sweet.”
Hearing Tr. 50 (May 25, 2017).
Other circuits have recognized that a disparity in
sentencing exposure may suffice to show prejudice under the
second prong of Strickland. See United States v. Herrera, 412
F.3d 577, 581 (5th Cir. 2005); Griffin v. United States, 330 F.3d
733, 737–38 (6th Cir. 2003); United States v. Day, 969 F.2d 39,
45–46 (3d Cir. 1992). Although those decisions predate the
Supreme Court’s decision in Lee, the Supreme Court did
nothing to undermine the commonsense conclusion that a
disparity in sentencing exposure is relevant to the prejudice
inquiry. Indeed, even after Lee, our sister circuits have
continued to view a severe disparity between the plea offer and
sentence faced by proceeding to trial as compelling evidence
that the defendant would have accepted a plea offer but for
counsel’s constitutionally deficient performance. See, e.g.,
Dodson v. Ballard, 800 F. App’x 171, 181 (4th Cir. 2020);
Byrd v. Skipper, 940 F.3d 248, 259 (6th Cir. 2019). And it is
telling here, for purposes of establishing a reasonable
probability, that Knight’s similarly situated wired co-defendant
who was advised by his counsel of the generosity of the plea
offer and his potential sentencing exposure if he rejected it,
wanted to accept the plea offer. This, too, is contemporaneous
evidence that Knight would also have been inclined to accept
the offer had he not been misinformed and inadequately
informed about the plea offer and the enhanced sentencing
exposure he would face by going to trial and instead received
the assistance of counsel to which the Constitution entitled him.
While our dissenting colleague cites Lee for the proposition
that defendants often weigh differently the respective risks of
pleading and going to trial, Lee does not question that one co-
defendant’s willingness to accept a plea offer may tend to show
12
that another co-defendant would have taken the same plea
offer. The record shows that Knight and Thorpe’s criminal
history categories were only one level apart. See Govt’s Supp.
Sent. Mem. 2–3 (Nov. 8, 2013). That Thorpe may have
received a slightly higher sentence than Knight by going to trial
does not make Thorpe’s willingness to accept the plea offer
irrelevant to whether there is a reasonable probability that
Knight would have accepted the offer as well.
Other evidence contemporaneous to when the plea offer
was pending in the Superior Court indicates that Knight may
have been amenable to accepting the plea offer had he been
properly advised by counsel. Knight explained on remand at
the ineffective assistance hearing that when his counsel
informed him the government had extended a plea offer, his
first question was “how much time do[es] [the government]
want for that?” Hearing Tr. 19 (May 24, 2017). That question
suggests that his decision whether to accept the plea offer was
calibrated to the sentence that he would receive as a result of
pleading guilty. Knight’s circumstances do not otherwise
indicate that he was dead-set on going to trial no matter its risks
and consequences, and he may well have responded to the plea
offer differently had counsel correctly advised him of its
sentencing consequences. Instead, he made the decision to
reject a two-to-six-year sentence plea offer based on the
understanding that his sentence would be ten years.
The remainder of Knight’s contemporaneous exchange
with counsel further indicates a reasonable probability that
Knight would have accepted the plea offer had counsel
apprised him of the consequences of declining it. When
counsel told him that the guilty plea would require ten years’
imprisonment and Knight responded that he was “not copping
to that,” counsel interjected: “Well, just hold up, I’m going to
come over to the jail and talk to you.” Id. That statement
13
indicated there was more Knight should consider before
deciding whether to accept the plea offer. Knight’s reply,
“okay,” id., indicates that although his initial reaction upon
learning he would have to serve ten years in prison was to reject
the plea offer, he was amenable to further discussion and
possibly to changing his mind even under the mistaken
impression that he would face ten years if he pled guilty. Given
this exchange, had Knight’s counsel visited him in jail,
corrected his earlier erroneous advice, and adequately
counselled him on the sentencing exposure he faced if he
rejected the plea offer, there is a reasonable probability that
Knight would have changed his mind, especially given the
magnitude of the disparity in that exposure as compared to
accepting the government’s initial offer. After all, he was
expecting to have a child shortly enter his life and presumably
would not have preferred to be in prison during the entirety of
his child’s youth.
Despite this record evidence, the government insists that
the only evidence Knight would have accepted the plea offer
was his after-the-fact testimony at the ineffective assistance
hearing. In the government’s view, what contemporaneous
evidence did exist of Knight’s preferences at the time of the
plea offer suggests that he would not have accepted it because
Knight told counsel that he wanted to be released to attend his
child’s birth. Under the terms of the plea offer, he would not
have been able to be present. Also, the government notes,
Knight was hopeful that the victim of the crimes would not
testify against him at a trial.
Admittedly, these are considerations that would have
weighed in favor of Knight rejecting the plea offer and
proceeding to trial. Because one of the terms of that offer was
that he would be unable to seek to modify the conditions of his
presentence detention, accepting the offer would have meant
14
he would not have been able to obtain immediate release for
the birth of his child. And his reported optimism that a key
witness would not testify against him at trial might have
tempted him to take his chances in the hope of obtaining an
acquittal. Yet none of this evidence precludes there being a
reasonable probability that Knight, upon being properly
advised by counsel, including a realistic assessment of whether
a key government witness would not testify at trial, would have
accepted the generous plea offer. Knight was under the
erroneous impression that accepting the plea offer came with
ten years’ imprisonment, and counsel failed to advise him of
the worst-case scenario consequences of declining the plea
offer. Given that the Supreme Court has acknowledged that
“the possibility of even a highly improbable result may be
pertinent to the extent it would have affected [a defendant’s]
decisionmaking,” Lee, 137 S. Ct. at 1967, Knight’s
considerable misunderstanding of his circumstances, caused by
counsel’s omissions and misinformation, is relevant to whether
Knight would have accepted the plea offer but for counsel’s
ineffectiveness.
Furthermore, to the extent some evidence suggests that
Knight was not inclined to accept the Superior Court plea offer,
it is of limited value because it is infected by counsel’s deficient
performance. What the evidence shows is that under what he
mistakenly understood to be the circumstances, Knight, unlike
his co-defendant Thorpe, did not want to accept a generous plea
offer. Yet the record also shows that Knight’s understanding,
unlike his co-defendant’s, diverged significantly from his
actual situation. The priority that Knight placed on being
present at his child’s birth arose in the context of thinking the
plea offer required ten years’ imprisonment. His assessment of
what was in his best interests could well have changed had he
been correctly advised of the consequences of accepting and of
rejecting the plea offer. Given the severity of the charges that
15
Knight faced, along with the fact that his alleged commission
of the offense while using a firearm and on supervised release
for a prior federal drug conviction weighed in favor of
detention, the prospect that he would be able to obtain pretrial
release was likely illusory, as adequate counsel could have
discussed with him. See, e.g., United States v. Smith, 79 F.3d
1208, 1210–11 (D.C. Cir. 1996); United States v. Peralta,
849 F.2d 625, 626 (D.C. Cir. 1988). So too, given the
government’s interest in having Peters’ testimony as the victim
of the crimes, was Knight’s speculation that Peters would not
testify against him at trial. Had Knight received proper advice
from his counsel at the time of the plea offer, he would have
learned these were unlikely prospects.
In short, that Knight was focused on obtaining release says
little about what he would have done had he been adequately
advised of the consequences of declining the plea offer. In
analyzing whether a defendant had suffered prejudice from his
attorney’s failure to inform him of his sentencing exposure if
he declined the government’s plea offer, this court has aptly
observed: “[T]he choices that [the defendant] actually made do
not necessarily shed any useful light on the choices that he
would have made if he had been properly advised.” United
States v. Thompson, 27 F.3d 671, 677 (D.C. Cir. 1994). The
same is true here.
Nor does the absence of unequivocal contemporaneous
evidence that Knight affirmatively wanted a plea deal mean
that he cannot show a reasonable probability that he would
have accepted the plea offer if he had been provided the
effective assistance of counsel. As this court explained, “[t]he
Supreme Court did not suggest in Lee that a defendant must
hypothesize his counsel’s advice might be erroneous and state
contemporaneously that his plea decision would differ if that
were so.” Aguiar, 894 F.3d at 362 (discussing Lee, 137 S. Ct.
16at 1967–68). Here, as in Aguiar, “[t]he gravamen of [Knight’s]
claim is that because of [his] counsel’s deficiency, he had no
reason to suspect he needed to make such a statement, and thus
did not know the full consequences of his decision to reject the
plea.” Id. At the time of the Superior Court plea offer, with
the misinformation and insufficient information he had
received, Knight could not intelligently assess whether to
accept the offer. To meet his burden, Knight was not required
to show either that he wanted to accept the plea offer but was
dissuaded by counsel, or that he certainly would have accepted
the offer but for counsel’s ineffectiveness. Instead, he needed
to show only that there was a reasonable probability that he
would have accepted the plea offer were it not for his counsel’s
inadequate assistance.
The government also maintains that Knight’s subsequent
rejection of a plea offer in his federal case shows that he was
not amenable to any kind of plea deal and thus would not have
accepted the Superior Court plea offer even if properly advised
by counsel. It is debatable whether this evidence is
contemporaneous because the government made the federal
court plea offer six months after Knight and Thorpe rejected
the Superior Court plea offer. At most it sheds only limited
light on whether Knight would have accepted the Superior
Court plea offer had his counsel provided proper assistance
because the plea offer on the federal charges was considerably
less attractive. In federal court, Knight would have been
required to plead guilty to three counts carrying a mandatory
minimum sentence of five years and a cumulative maximum
sentence of 45 years. The Superior Court plea offer required
Knight to plead guilty to a single count that carried no
mandatory minimum and a ten-year maximum sentence, with
a Sentencing Guidelines range of two to six years. The
government, therefore, puts too much weight on his rejection
of the federal plea in arguing that because Knight declined this
17
plea offer, he would not have accepted any plea offer.
Moreover, Thorpe’s willingness to accept the plea offer in
Superior Court counsels against reading too much into
Knight’s rejection of the subsequent plea offer in his federal
case, for Thorpe also rejected the federal court offer. That
Thorpe did so, and that he would have accepted the Superior
Court offer, suggests that Knight might have had good reason
for rejecting the federal court offer regardless of whether he
would have accepted the Superior Court offer had he been
properly advised by his counsel.
In sum, it is undisputed by the district court and the
government that Knight’s counsel’s performance was
deficient. Those deficiencies distorted Knight’s understanding
of his circumstances, rendering it impossible for him to make
an intelligent decision about whether to accept a generous plea
offer. Consequently, a proper evaluation of the evidence of
Knight’s interests and desires to go to trial and to be present at
the birth of his child required the district court to consider the
effect of his counsel’s failings. The evidence before the district
court sufficed to establish a reasonably probability that Knight,
like Thorpe, would have accepted the plea offer. Because the
district court’s subsidiary findings regarding Knight’s desire to
be at his child’s birth and to go to trial failed to account for the
direct impact of his counsel’s deficient performance, those
findings, to the extent they were the basis for the district court’s
determination that Knight failed to show prejudice, are clearly
erroneous. And because the government has never suggested
that it would have rescinded the offer, or that the Superior
Court would not have accepted the offer, those arguments are
forfeited. See Carducci v. Regan, 714 F.3d 171, 177 (D.C. Cir.
1983). Upon review of the prejudice determination, we
therefore reverse the district court’s denial of Knight’s
Strickland claim.
18
B.
In contrast, we agree with the district court that Thorpe did
not receive ineffective assistance of counsel. Unlike Knight’s
counsel, Thorpe’s counsel met with his client at least twice in
jail prior to the February 19 preliminary hearing to discuss the
plea offer. During these conversations, Thorpe’s counsel
provided Thorpe with all of the information necessary to make
an intelligent decision whether or not to accept the plea offer,
including the sentencing range for the ADW charge, the wired
nature of the plea offer, and the possibility of federal charges
with substantially greater sentencing exposure if he rejected the
plea offer. Further, Thorpe’s counsel informed Thorpe that he
had learned from Knight’s counsel that Knight was unlikely to
accept the plea offer. And, consistent with the practice of the
D.C. Public Defenders Service where we worked, Thorpe’s
counsel asked the government to unwire the plea offer. Thus,
because this conduct “falls within the wide range of reasonable
professional assistance,” Strickland, 466 U.S. at 689, Thorpe
did not receive constitutionally deficient performance from his
counsel. It follows that Thorpe cannot establish a violation of
his Sixth Amendment rights.
III.
“Sixth Amendment remedies should be ‘tailored to the
injury suffered from the constitutional violation and should not
unnecessarily infringe on competing interests,’” Lafler, 566
U.S. at 170 (quoting United States v. Morrison, 449 U.S. 361,
364 (1981)), and there is considerable discretion to fashion
such a remedy, see id. at 171. Although the remedy for a Sixth
Amendment violation should not “grant a windfall to the
defendant or needlessly squander the considerable resources
the State properly invested in the criminal prosecution,” it
“must ‘neutralize the taint’ of [the] constitutional violation.”
19
Id. at 170 (quoting Morrison, 449 U.S. at 365). When a Sixth
Amendment deprivation causes a defendant to reject “an offer
. . . for a guilty plea to a count or counts less serious than the
ones for which [he] was convicted” at trial, “resentencing alone
[based on the convictions at trial] will not be full redress for the
constitutional injury.” Id. at 171. “In these circumstances, the
proper exercise of discretion to remedy the constitutional injury
may be to require the prosecution to reoffer the plea proposal.”
Id.
This is such a case, for the appropriate remedy calls upon
the government to reoffer the original plea deal to Knight.
While the district court has some discretion to accept or reject
the plea, see Lafler, 566 U.S. at 172, the Supreme Court in
Lafler declined to define the boundaries of that discretion, id.,and so do we here. But we do note that there is nothing in
Lafler to indicate that the breadth of the district court’s
discretion is as great as our dissenting colleague suggests. See
Dis. Op. at 14–15. Rather, the Court in Lafler indicated that
the trial court’s discretion derives from the court rule governing
its acceptance or rejection of plea agreements. 566 U.S. at 174
(citing Mich. Ct. Rule 6.302(C)(3) (2011)). Here, that rule is
Rule 11 of the Federal Rules of Criminal Procedure, under
which “a district court lacks authority to reject a proposed
agreement based on mere disagreement with a prosecutor’s
underlying charging decisions.” United States v. Fokker Servs.
B.V., 818 F.3d 733, 745 (D.C. Cir. 2016) (citing United States
v. Ammidown, 497 F.2d 615, 622 (D.C. Cir. 1973)). And Lafler
certainly did not indicate that the impossibility of restoring to
the government the costs of trying a defendant is grounds alone
to deny that defendant any remedy for the violation of his Sixth
Amendment rights. Indeed, such a rule would threaten to
render the remedy articulated in Lafler a nullity because in
virtually every Lafler-type case the government expends
significant resources at trial as a result of the defendant’s
20
counsel’s incompetent performance. To the contrary, the Court
in Lafler, 556 U.S. at 172, noted that in fashioning its remedy
the trial court should “find[] a remedy that does not require the
prosecution to incur the expense of conducting a new trial,”
even though “[t]he time continuum makes it difficult to restore
the [parties] to the precise positions they [previously]
occupied.” In doing so, the trial court “must weigh various
factors,” id. at 171, and may “consult” the respective positions
occupied by the defendant and prosecution before the rejection
of the plea as a “baseline,” id. at 172. Nor would enforcement
of the plea agreement on remand “dramatically” benefit Knight
to the detriment of the government, Dis. Op. at 15, for although
the government incurred the expense of proceeding to trial as a
result of Knight’s counsel’s ineffective assistance, that must be
balanced against the fact that Knight’s term of imprisonment
has already exceeded the upper bound of the Superior Court
Sentencing Guidelines range for the ADW charge set forth in
the plea offer.
According to Thorpe, even if his counsel was not deficient,
the government must nonetheless reoffer the plea to both
defendants, essentially because the generous plea offer in the
Superior Court was wired. As Thorpe sees it, despite receiving
constitutionally adequate counsel, he has suffered a Sixth
Amendment injury “identical” to Knight because the
ineffective assistance of Knight’s counsel prevented him from
obtaining the benefits of the plea offer. Reply Br. 18. But
although Thorpe expressed his desire to accept the plea offer
from the outset, he knew that the plea offer was conditioned on
both defendants accepting it. Thorpe’s ability to accept the
wired plea offer was thwarted by Knight’s uninformed decision
to reject it. He was also thwarted by the government’s refusal
to unwire the defendants so he could accept the plea offer. Both
defendants were convicted by a jury in federal court, and their
convictions were affirmed on direct appeal, save for the remand
21
on their ineffective assistance of counsel claims. In these
circumstances, where Thorpe’s Sixth Amendment rights were
not violated, the court is unaware of any precedent granting
relief to one defendant because a co-defendant received the
ineffective assistance of counsel. Nor does it seem appropriate
to order the government to reoffer a wired plea in order to
restore Knight to his original position because were this a
different case and Knight’s co-defendant had been acquitted at
trial, he would certainly refuse to accept the reissued wired
plea, and Knight’s constitutional injury would not be remedied
at all.
The appropriate remedy for a defendant who received a
wired plea offer but was prevented from taking it solely by his
counsel’s ineffectiveness is simply to order the government to
extend the offer to that defendant again, without regard to
whether his co-defendant would be presently willing to accept
the offer. Although this court cannot order that it do so, the
government has the discretion to ameliorate any injustice that
would result from permitting the inadequately counseled
defendant to accept the original plea offer but not the co-
defendant whose counsel’s performance was adequate. Even
now, the prosecution may seek dismissal of some or all of the
charges against Thorpe under Rule 48(a) of the Federal Rules
of Criminal Procedure. See, e.g., Rinaldi v. United States, 434
U.S. 22 (1977).
IV.
Our dissenting colleague would resolve this appeal by
creating a novel legal framework making it more difficult than
current law requires for a defendant to prove the denial of the
constitutional right to the effective assistance of counsel. This
is accomplished mostly by three means: misreading Supreme
Court precedent, creating new law out of whole cloth contrary
22
to precedent, and ignoring on-point precedent of this court.
These deviations from the applicable law render useless the
usual comparative analysis between the opinion of the court
and the dissent but do not obviate the need to respond.
First, our dissenting colleague states that Lee “strongly
suggests” that the court’s prejudice analysis may not take
account of the generosity of the plea deal in its prejudice
analysis, Dis. Op. at 4. Nothing in Lee implies that disparity in
sentencing exposure can never qualify as contemporaneous
evidence. In Lee, 137 S. Ct. at 1963, the defendant pled guilty
to a charge that, unbeknownst to him because of his counsel’s
ineffective assistance, would result in his mandatory
deportation. There was “no question” that deportation was the
paramount consideration for Lee in deciding whether to plead
guilty. Id. at 1967. He sought to vacate the plea and proceed
to trial, even though he had “no viable defense” to the charge,
faced near-certain conviction by a jury, and would thereafter
face deportation on top of a likely longer prison sentence. See
id. at 1966–67. In deciding whether to accept the plea offer
had he been properly advised, Lee therefore would have faced
a choice between “certainly” being deported if he pled guilty
and “[a]lmost certainly” being deported if he went to trial. Id.
at 1968. Thus, as to the “determinative issue” in Lee’s decision
whether to accept the plea offer, id., there was barely any
disparity at all — only the small difference between certainty
and almost-certainty. In Lee, therefore, the Court had no
occasion to consider whether a disparity in outcomes between
accepting a plea offer and proceeding to trial could bear on the
Strickland prejudice analysis.
Second, contrary to our dissenting colleague, reliance on
testimony adduced at the evidentiary hearing does not run afoul
of Lee. See Dis. Op. at 6–7. At most, Lee, 137 S. Ct. at 1967,
proscribed courts from relying “solely” on “post hoc assertions
23
from a defendant about how he would have pleaded.” The
Supreme Court in Lee did not, however, impose a blanket ban
on considering testimony adduced at an evidentiary hearing
about temporally contemporaneous events. The Supreme
Court has observed that a trial record is “not developed
precisely for the object of litigating or preserving [an
ineffective assistance] claim and thus [is] often incomplete or
inadequate for this purpose.” Massaro v. United States, 538
U.S. 500, 504–05 (2003). As a result, in deciding an ineffective
assistance claim, the court “may take testimony from witnesses
for the defendant and the prosecution and from the counsel
alleged to have rendered the deficient performance.” Id. at 505.
Nor, as the dissent suggests, is such properly considered
testimony limited to the defendant’s production of a
contemporaneous “transcript, letter, or recording,” should he be
lucky enough to have one. Dis. Op. at 6. Such a test is nowhere
required or suggested or even hinted at in Lee, much less in
supporting authority. Id. Our dissenting colleague protests that
he has been misunderstood, noting he would not exclude plea
generosity evidence or evidence adduced at an evidentiary
hearing. Dis. Op. at 7 n.1. But this is to no avail for he still
views such not to be “contemporaneous evidence” as he defines
it and so insufficient to show prejudice.
Third, our dissenting colleague acknowledges that this
court reviews the district court’s prejudice decision de novo but
finds no clear error in the district court’s factual finding that
Knight offered no contemporaneous evidence, a subject that
this court also reviews de novo. Abney, 812 F.3d at 1087; see
also id. at 1093–94; United States v. Toms, 396 F.3d 427, 432
(D.C. Cir. 2005). Our colleague either ignores the evidence
before the district court (or belittles it as “snippets,” Dis. Op.
at 12), or redefines “contemporaneous evidence” as limited to
physical evidence or requires statements by a defendant at the
time that this court has held are not required. Dis. Op. at 6–7.
24
The flawed logic on which the district court proceeded, see
Thompson, 27 F.3d at 677, is highlighted when the dissent too
points to Knight’s refusal to enter a plea to the federal charges,
Dis. Op. at 10. In applying common sense in the government’s
favor, see id. at 13, while refusing to consider Knight’s actions
contextually, see id. at 11–12 — that is, in the context of his
ignorance of his circumstances as a result of his counsel’s
deficient advice — our colleague relies on generalizations that
can only be considered anecdotal absent record support.
Accordingly, we affirm the order denying Thorpe’s Sixth
Amendment challenge but reverse the denial of Knight’s Sixth
Amendment challenge and remand his case to the district court
to provide a remedy consistent with this opinion.
KATSAS, Circuit Judge, dissenting in part: After a jury
convicted him of serious crimes, Melvin Knight claimed that
bad legal advice had caused him to reject a favorable plea offer.
Following an evidentiary hearing on this claim, the district
court found no reasonable probability that Knight would have
accepted the plea offer had he received adequate advice. That
finding was not clearly erroneous, and it establishes that Knight
did not receive ineffective assistance of counsel.
I
On January 28, 2013, Knight and Aaron Thorpe violently
kidnapped Edmund Peters and Luttitia Fortune. Knight and
Thorpe assaulted their victims outdoors, fired a gunshot, forced
their way into Peters’s apartment, tied up the victims, and beat
Peters while attempting to steal his money and drugs. They
promised to kill Peters, and Thorpe placed the barrel of his gun
against Peters’s head. When police surrounded the apartment,
Knight and Thorpe untied the victims, concocted a story of
friendly sparring, and told the victims to play along. Peters
complied out of fear that Knight would further harm him.
Knight told Peters that he would not go to prison over the
kidnapping, which Peters took as another threat. The police
were not fooled.
Knight and Thorpe initially were charged with armed
kidnapping in D.C. Superior Court. On January 31, 2013, the
government offered Knight and Thorpe a wired plea deal—one
that required acceptance by both defendants. If each defendant
would plead guilty to one count of assault with a dangerous
weapon, the government would forgo various other, more
serious charges. While the offer was outstanding, Knight’s
counsel advised Knight that if he accepted the plea offer, he
would likely face ten years of imprisonment. In fact, ten years
was the statutory maximum for assault with a dangerous
weapon, while the recommended sentencing guideline range
would have been two to six years. Counsel also failed to advise
2
that Knight would face substantially greater exposure if he
rejected the plea offer and the government chose to pursue the
further charges. Knight rejected the offer, which prevented
Thorpe from accepting it.
The government dismissed the case in Superior Court and
obtained a federal indictment. Knight received a different
counsel for district court. Knight and Thorpe each was charged
with one count of possessing a firearm as a felon, two counts
of possessing a firearm during a crime of violence, two counts
of armed kidnapping, one count of armed burglary, one count
of assault with a dangerous weapon, one count of obstruction,
and one count of conspiracy. The jury convicted on all counts,
and Knight and Thorpe received prison sentences of 268 and
300 months, respectively. On direct review, we rejected
various challenges to the convictions and to Thorpe’s sentence,
but we remanded the case for factual development of claims
that each defendant’s counsel had provided ineffective
assistance during the plea negotiations in Superior Court.
United States v. Knight, 824 F.3d 1105 (D.C. Cir. 2016).
On remand, the district court held three days of evidentiary
hearings on the ineffective-assistance claims. Knight and
Thorpe testified at length, as did their respective Superior Court
counsel and a custodian of D.C. jail records. The court ordered
production of the initial plea offer, transcripts memorializing
the plea discussions in Superior Court and district court, and
other documents bearing on the contested representations.
Knight also introduced an ethics complaint that he had filed
against his Superior Court counsel.
After reviewing all this evidence, the district court rejected
the claims of both defendants. United States v. Thorpe, No. 13-
cr-131, 2019 WL 1117197 (D.D.C. Mar. 11, 2019). The court
found that Knight’s counsel performed deficiently in
3
connection with the plea offer, but it found no reasonable
probability that Knight would have accepted the offer had he
received adequate advice. Id. at *8–10. The court also found
that Thorpe’s counsel did not perform deficiently. Id. at *11.
II
The Sixth Amendment confers upon criminal defendants a
right “to have the Assistance of Counsel.” The Supreme Court
has held that “Assistance” means effective assistance.
Strickland v. Washington, 466 U.S. 668 (1984). To establish a
violation of this right, the defendant must prove both that his
counsel performed deficiently and that this caused prejudice.
Id. at 687. To prove prejudice, the defendant must show a
reasonable probability that the deficient performance changed
the result of the proceeding. See id. at 694. Thus, for claims
that deficient advice caused the defendant to reject a plea offer,
the defendant must show a reasonable probability that he would
have accepted the offer had he received adequate advice.
Lafler v. Cooper, 566 U.S. 156, 164 (2012).
This case turns on whether Knight established a reasonable
probability that he would have accepted the Superior Court
plea offer if he had received proper advice. For two reasons, I
would affirm the district court’s conclusion that Knight failed
to meet his burden of proof on this question.
A
In Lee v. United States, 137 S. Ct. 1958 (2017), the
Supreme Court imposed a high evidentiary hurdle for
defendants seeking to undo their plea decisions through claims
of ineffective assistance. The Court held that the defendant
must adduce evidence contemporaneous with the plea decision:
“Courts should not upset a plea solely because of post hoc
4
assertions from a defendant about how he would have pleaded
but for his attorney’s deficiencies. Judges should instead look
to contemporaneous evidence to substantiate a defendant’s
expressed preferences.” Id. at 1967. Although Lee involved a
defendant seeking to undo a prior plea acceptance, the Court’s
reasoning fully applies to defendants seeking to undo a prior
plea rejection. We have recognized that Lee applies in both
contexts. See, e.g., United States v. Aguiar, 894 F.3d 351, 361–
62 (D.C. Cir. 2018).
No contemporaneous evidence suggests that Knight would
have accepted the plea offer had he received proper advice. In
this Court, Knight’s current counsel acknowledged that the
contemporaneous evidence was “nearly useless” to show
prejudice. Oral Arg. at 4:45. Yet my colleagues invoke two
categories of evidence that they say are both contemporaneous
and weighty enough to show prejudice.
First, my colleagues reason that the “generosity” of the
Superior Court plea offer was itself contemporaneous evidence
of prejudice. Ante, at 9. But Lee strongly suggests otherwise.
There, the Supreme Court did not make its own abstract
assessment of how favorable the disputed plea was to the
defendant. Nor did the Court rest on the defendant’s
undisputed testimony, at a post-conviction hearing, that he
would have rejected the plea offer had he known that it would
lead to mandatory deportation. See 137 S. Ct. at 1967–68.
Instead, the Court insisted on corroborating evidence
“contemporaneous” with the plea itself—there, the defendant’s
specific statements during his plea colloquy that any risk of
deportation would have affected his plea decision. See id. at
1968. And the Court discounted objective evidence that the
accepted plea was favorable to the defendant given the very
high likelihood of a conviction. On that point, the Court
stressed that defendants assess trial risks differently, and even
5
a defendant “almost certain” to be convicted could rationally
reject a plea. Id. at 1968 (cleaned up).
Moreover, there are good reasons for insisting on
contemporaneous evidence beyond an assessment of how
generous a plea offer appears after-the-fact. Plea deals secure
important benefits for the government. They eliminate the time
and expense of developing and trying cases, which would
otherwise overwhelm a judicial system in which almost 98
percent of convictions are secured through guilty pleas. See
Statistical Tables for the Federal Judiciary, tbl. D-4 (2019).
They also eliminate the otherwise inescapable risk of outright
acquittals. It is hardly surprising that the government offers
significant benefits in return for guilty pleas—and, therefore,
that defendants who “take their case[s] to trial and lose receive
longer sentences” than those who plead guilty. Missouri v.
Frye, 566 U.S. 134, 144 (2012) (quotation marks omitted).
Perhaps this plea offer was unusually generous, but Knight has
not made that case. And if any large disparity in exposure
qualifies as contemporaneous evidence of prejudice, then we
have opened the floodgates, all but eliminating prejudice as an
independent element for Lafler claims. That is precisely the
opposite of what the Supreme Court sought to accomplish in
Lee, which stressed that “[s]urmounting Strickland’s high bar
is never an easy task,” 137 S. Ct. at 1967 (quotation marks
omitted), and which imposed a contemporaneous-evidence
requirement to keep it that way.
My colleagues cite out-of-circuit cases for the proposition
that a “disparity in sentencing exposure” may show prejudice.
Ante, at 11. But three of those cases were decided before Lee
established the requirement of contemporaneous corroborating
evidence. United States v. Herrera, 412 F.3d 577, 582 (5th Cir.
2005); Griffin v. United States, 330 F.3d 733, 739 (6th Cir.
2003); United States v. Day, 969 F.2d 39, 45–47 (3d Cir. 1992).
6
A fourth rested on the defendant’s “long history of entering into
plea agreements in prior cases.” Dodson v. Ballard, 800 F.
App’x 171, 180–81 (4th Cir. 2020). In a fifth, the defendant
“specifically asked” his counsel about pleading guilty, yet
counsel promised that going to trial would be a “home run.”
Byrd v. Skipper, 940 F.3d 248, 258–59 (6th Cir. 2019).
Nothing like that happened here.
My colleagues cite one consideration specific to the plea
offer in this case—that Thorpe wanted to accept it. Ante, at 11–
12. That does not count for much, as defendants often weigh
differently the respective risks of pleading and going to trial.
See Lee, 137 S. Ct. at 1968–69. Moreover, Thorpe had “a more
significant criminal history than Knight,” which substantially
increased his downside risk at trial. Knight, 824 F.3d at 1111.
Thorpe’s preferences thus do not shed much light on Knight’s.
Second, my colleagues conclude that Knight’s testimony
at the 2017 ineffective-assistance hearing qualifies as
contemporaneous evidence. Ante, at 12–13. It does not. At
that hearing, conducted years after Knight had been convicted
and sentenced, Knight testified about conversations with his
lawyer during the 2013 plea negotiations. This may be
evidence about events contemporaneous with the plea offer.
But it is not “contemporaneous evidence” as opposed to “post
hoc assertions from a defendant about how he would have
pleaded but for his attorney’s deficiencies.” Lee, 137 S. Ct. at
1967. “Contemporaneous evidence” would be something akin
to the statements made by Lee “at his plea colloquy,” which
sufficed to corroborate his later post-conviction testimony. See
id. at 1968. Here, Knight presented no evidence generated
contemporaneously with the plea negotiations—such as a
transcript, letter, or recording—to support his later contentions
about his preferences at the time. His 2017 testimony, about
the 2013 plea offer, was not “contemporaneous evidence.”
7
To downplay the need for contemporaneous evidence, my
colleagues invoke Aguiar. Ante, at 15–16. There, we held that
a defendant does not need contemporaneous evidence to secure
“an evidentiary hearing to prove his claim.” 894 F.3d at 361–
62. But we expressly declined to address how the defendant
could “satisf[y] his ultimate burden of proof.” Id. We also
observed that Lee does not require a defendant to “hypothesize
his counsel’s advice might be erroneous and state
contemporaneously that his plea decision would differ if that
were so.” Id. at 362. Perhaps not, but Lee does require the
defendant to build a prejudice case consisting of more than just
post-conviction testimony—given after the defendant has
taken his shot at acquittal—plus the near truism that plea deals
produce much lower sentences than do convictions after trial.
Because Knight presented no contemporaneous evidence
that he would have accepted the Superior Court plea offer but
for bad legal advice, we should reject his post hoc attempt to
undo his plea decision.1
1
My colleagues characterize this dissent as saying that courts
may not consider “the generosity of the plea deal” or “testimony
adduced at an evidentiary hearing” post-conviction. Ante, at 22–23.
To the contrary, I have simply explained that post-conviction
testimony is not contemporaneous evidence. And because it cannot
suffice to show prejudice under Lee, then neither can the formula
embraced by my colleagues: post-conviction testimony plus the
truism that the defendant would have received a much shorter
sentence had he accepted the plea offer.
8
B
Even overlooking the lack of contemporaneous evidence,
the district court permissibly concluded that Knight had failed
to show prejudice.
1
We review the ultimate question of prejudice de novo,
United States v. Abney, 812 F.3d 1079, 1086–87 (D.C. Cir.
2016), but “the district court’s factual findings made in the
course of judging an ineffective assistance of counsel claim
may be set aside only if clearly erroneous,” United States v.
Mathis, 503 F.3d 150, 151 (D.C. Cir. 2007). Strickland itself
makes clear that district-court “findings of fact made in the
course of deciding an ineffectiveness claim” are “subject to the
clearly erroneous standard” of review. 466 U.S. at 698.
According to the district court, Knight failed to show a
reasonable probability that he would have accepted the plea
offer had he received proper advice. 2019 WL 1117197, at
*10. This was a finding of fact, not a legal statement about
what constitutes Strickland prejudice. In United States v.
Thompson, 27 F.3d 671 (D.C. Cir. 1994), we held that a district
court’s determination “whether there was a ‘reasonable
probability’ that [the defendant], if properly advised, would
have pleaded guilty” in time to qualify for a sentencing
reduction was a “factual finding” to be reviewed for clear error.
Id. at 677 (quoting Strickland, 466 U.S. at 694). Likewise, we
have treated as factual, and subjected to clear-error review,
determinations whether the government would have offered a
better plea deal but for defense counsel’s deficient
performance, see Mathis, 503 F.3d at 152, and whether a
defendant accepting a plea deal would have been convicted had
he gone to trial, see United States v. Del Rosario, 902 F.2d 55,
9
58 (D.C. Cir. 1990), abrogated on other grounds by Padilla v.
Kentucky, 559 U.S. 356 (2010). Other circuits have held that
the question whether a defendant would have accepted a plea
offer if properly advised is a factual one. See, e.g., Johnson v.
Genovese, 924 F.3d 929, 938–39 (6th Cir. 2019); United States
v. Scribner, 832 F.3d 252, 258 & n.4 (5th Cir. 2016);
Merzbacher v. Shearin, 706 F.3d 356, 366–68 (4th Cir. 2013).
The latter cases arose on collateral review, but the distinction
between direct and collateral review has no bearing on whether
the question at issue is legal or factual.
Common sense reinforces this view. The question whether
Knight would have accepted the plea offer had he been
properly advised has no impact on other cases. It involves no
normative judgments. And it rests on “the credibility of
witnesses and therefore turns largely on an evaluation of
demeanor.” Miller v. Fenton, 474 U.S. 104, 114 (1985). The
only possible justification for reviewing this finding de novo is
that the finding effectively controls the question of Strickland
prejudice. But it is “well established” that “an issue does not
lose its factual character merely because its resolution is
dispositive of the ultimate constitutional question.” Id. at 113.
For these reasons, I would review the district court’s
determination only for clear error.
2
“A finding is ‘clearly erroneous’ when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948). We apply this deferential
standard because district courts are “best suited to developing
the facts” bearing on ineffective-assistance claims. Massaro v.
United States, 538 U.S. 500, 505 (2003). We owe even
10
“greater deference” when factual findings rest on credibility
determinations, “for only the trial judge can be aware of the
variations in demeanor and tone of voice that bear so heavily
on the listener’s understanding of and belief in what is said.”
Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).
The critical finding here—that Knight was unlikely to
accept the plea offer even if he had received adequate advice—
is not clearly erroneous.
First, at a June 4, 2013 status hearing in district court, the
prosecutor memorialized the defendants’ firm desire to go to
trial: “I have talked to defense counsel in this case. It appears
that the Defendants are not amenable to even discussing a non
trial disposition. I would like that to be reflected on the record
. . . because the Defendants have indicated they want to go to
trial.” J.A. 465 (emphasis added). Knight’s district-court
counsel—who is not alleged to have been ineffective—was
present at the hearing and made no objection to this
representation. The fact that Knight was “not amenable to even
discussing” a plea, even after having received effective
assistance of counsel and having been indicted for all of his
crimes, strongly suggests that he would not have accepted a
Superior Court plea deal had he then been advised that
significant further charges were possible.
My colleagues focus on a draft plea agreement apparently
offered by the government on June 6, 2013. Ante, at 16–17.
But the defendants’ rejection of that offer only tends to confirm
the prosecutor’s statement that they were “not amenable to
even discussing” a plea. And despite my colleagues’
suggestion to the contrary, that sweeping statement remains
significant even though the June plea offer was less favorable
to the defendants than the January one had been.
11
Second, Knight’s behavior in February 2013, while the
Superior Court plea offer was pending, tracks what the
prosecutor later said in June. The district court found that
Knight “did not want any additional time to consider or discuss
the plea [in Superior Court], but instead pushed [his attorney]
to ‘move forward.’” 2019 WL 1117197, at *10. To be sure,
Knight probably assumed that the offer on the table would
entail ten years in prison. But plea bargains involve a “give-
and-take negotiation.” Bordenkircher v. Hayes, 434 U.S. 357,
362 (1978) (quotation marks omitted). And if Knight had been
open to a plea deal along the lines of what the government had
actually proposed, with a recommended guideline sentence of
up to six years, one might have expected him at least to
consider the possibility of further negotiations—especially
given his experience with two prior guilty pleas. Instead,
Knight pressed his attorney to “move forward” as quickly as
possible, to take his chances at trial.
Third, Knight had a powerful incentive to avoid any
conviction. When he kidnapped Peters in 2013, Knight was
still serving a five-year term of supervised release following
his 2001 guilty plea and ten-year sentence for distributing more
than 50 grams of cocaine base. 2019 WL 1117197, at *4 n.5;
see United States v. Knight, No. 01-cr-00016 (D.D.C. Sept. 14,
2001). Knight admitted knowing that his supervised release
would be revoked if he were convicted. And his attorney
testified that Knight “was concerned about getting that
additional time if he took the plea.” J.A. 340. As it turns out,
Knight was sentenced to 21 months of imprisonment for
violating the terms of his supervised release, running
concurrently with the sentence imposed in this case, after the
judge in the drug case accepted Knight’s request for leniency
based on the length of the sentence imposed here. See United
States v. Knight, No. 01-cr-00016 (D.D.C. July 1, 2014).
12
Fourth, Knight hoped that Peters—a key prosecution
witness—would not testify against him. 2019 WL 1117197, at
*11. Knight had good reason to be hopeful, for his threats
already had induced Peters to lie to the police on the night of
the arrest. And Peters agreed to testify against Knight only in
exchange for his own favorable plea deal in a separate case—
which was reached long after Knight had declined his Superior
Court plea offer. In sum, Knight’s own threats against Peters
supported his hope that Peters would not testify against him.
Fifth, on May 15, 2013, Knight filed an ethics complaint
against his Superior Court counsel with the D.C. bar. By then,
Knight already had been indicted in federal court and appointed
new counsel, whom Knight does not contend was ineffective.
In the bar complaint, Knight raised a host of allegations against
his former counsel—most prominently that counsel, in
obtaining a three-week continuance for Knight to consider the
plea offer, did not push the case forward quickly enough.
Nowhere in that complaint did Knight raise the alternative,
contradictory allegation that his counsel should have spent
more time attempting to negotiate a better plea deal or advising
Knight of the risks of an expanded indictment.
My colleagues point to snippets of contrary evidence from
Knight’s testimony at the ineffective-assistance hearing. For
instance, Knight claims to have asked his attorney “how much
time do they want” for the plea, and to have responded “okay”
when his counsel asked to discuss the plea issue further. J.A.
61; see ante, at 12–13. But the district court had ample reasons
for taking Knight’s testimony “with a grain of salt.” 2019 WL
1117197, at *9. Among other things, Knight was a repeatedly
convicted felon, and his offenses in this case included a scheme
to escape responsibility by coercing the victims of his crimes
“to lie to the police afterwards.” Id. at *10 n.6. Moreover,
Knight and his former counsel gave conflicting testimony on
13
whether Knight hoped that Peters would not testify against him,
and the district court resolved that dispute by concluding that
Knight had testified untruthfully. See id.Finally, I am skeptical of my colleagues’ view that the plea
offer here was unusually generous. In the abstract, there is little
surprise that the initial offer—made three days after the crimes,
before the government had conducted much of an
investigation, before the primary victim had agreed to testify,
and months before the trial—was substantially more favorable
than the sentences imposed after a full trial and guilty verdict.
As noted above, that is how pleas normally work. And this plea
offer may have fairly reflected evidentiary uncertainty and
Peters’s unwillingness to cooperate at the time, rather than an
act of gratuitous generosity. But in any event, Lafler asks only
whether the defendant would have accepted the plea offer, not
whether an objectively reasonable person would have done so.
See 566 U.S. at 164. Thus, our own assessment of the offer
must yield to Knight’s subjective reasons for rejecting it.2
2
If the plea offer were unusually generous, that would highlight
a further problem with my colleagues’ disposition of this appeal. To
show prejudice under Lafler, the defendant must establish a
reasonable probability that but for inadequate legal advice (1) the
defendant would have accepted the plea offer, (2) the government
would not have withdrawn it, (3) the court would have accepted the
plea, and (4) the sentence under the plea would have been less severe
than the sentence actually imposed. See 566 U.S. at 164. In this
case, the district court found that Knight had failed to prove the first
element of prejudice, so it did not address the others. An unusually
generous plea offer would simply highlight the need to determine
whether the Superior Court would have accepted it. On my
colleagues’ own reasoning, then, we should remand for the district
court to resolve that question.
14
The district court committed no clear error in finding that
Knight was unlikely to have accepted the plea offer had he
received adequate legal advice. Knight’s ineffective-assistance
claim thus fails for lack of any prejudice.
III
On the question of remedy, my colleagues order the
government to re-extend its original plea offer to Knight. They
acknowledge that the district court retains discretion to
consider whether to accept or reject this plea deal, while also
noting that the discretion has limits. Ante, at 19–20.
Lafler governs this remedial inquiry. The Supreme Court
noted that, if ineffective assistance causes the defendant to
reject a plea offer, “the proper exercise of discretion to remedy
the constitutional injury may be to require the prosecution to
reoffer the plea proposal.” 566 U.S. at 171. But “[o]nce this
has occurred, the [trial] judge can then exercise discretion in
deciding whether to vacate the conviction from trial and accept
the plea or leave the conviction undisturbed.” Id. (emphasis
added). The Court thus held that the “correct remedy” in Lafler
itself was simply “to order the State to reoffer the plea
agreement,” and it vacated a Sixth Circuit decision that had
further “ordered specific performance of the original plea
agreement.” Id. at 174. In so doing, the Supreme Court
explained that the trial court on remand could “exercise its
discretion in determining whether to vacate the convictions and
resentence [the defendant] pursuant to the plea agreement, to
vacate only some of the convictions and resentence [the
defendant] accordingly, or to leave the convictions and
sentence from trial undisturbed.” Id.
In this case, several considerations favor rejecting the
reoffered plea agreement. The original plea offer was made
15
only three days after Knight committed his crimes—before the
government spent years building a case against him,
prosecuting him, and defending against his appeal and post-
conviction claims. Seven years after-the-fact, the plea offer
would give Knight most of what the government originally
offered to him, in the form of substantially lower sentencing
exposure. But it would give the government none of what it
demanded in return—avoiding the cost of prosecuting this case
and the risk of an acquittal. Moreover, after Knight rejected
the plea offer, the government offered Peters a favorable plea
agreement to secure his testimony against Knight, thus
narrowing it options for seeking a lawful punishment of Peters.
And another court imposed a lenient sentence on Knight for his
supervised-release violations because of his conviction and
long sentence in this case. In short, intervening events have
made it impossible to restore the parties to the respective
positions that they would have held had Knight accepted the
plea offer in 2013. And enforcing the plea agreement now
would dramatically skew its benefits and burdens in favor of
Knight and against the government.
My colleagues fairly note the competing interest in
affording some remedy for ineffective assistance in this
context, and I have no quarrel with the proposition that this
interest must be “balanced against” the government interests
noted above. Ante, at 20. In my view, such balancing would
occur if the district court on remand were to reject the plea
agreement and then impose a sentence taking account of both
the ineffective assistance found by my colleagues and the
changed circumstances noted above. That approach would
recognize the impossibility of restoring the parties to the
“precise positions they occupied prior to the rejection of the
plea offer.” Lafler, 566 U.S. at 171–72. And it would rest not
on judicial disagreement with the government’s initial charging
decision, cf. United States v. Fokker Servs. B.V., 818 F.3d 733,
16
745 (D.C. Cir. 2016), but instead on a judgment that
intervening events have made it impossible, seven years later,
to give both parties the full benefit of their bargain.3
3
I agree with my colleagues that Thorpe received effective
assistance of counsel and is entitled to no remedy.