On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. No. 99-cr-00089-2) District Judge: Honorable Marvin Katz
Before: Scirica, Chief Judge, Becker and
Greenberg, Circuit Judges.
The opinion of the court was delivered by: Becker, Circuit Judge.
This is an appeal by defendant Dion A. Smack from a judgment in a criminal case. It has a complex, almost convoluted history, compounded by a poorly drafted and confusing application note to the U.S. Sentencing Guidelines. Although technically before us as an appeal, this case is at bottom a proceeding under 28 U.S.C. § 2255 because the real issue is whether, as Smack contends, counsel at his original plea and sentencing was ineffective in failing to bring to the Court's attention at sentencing the terms of Application Note 12 of Sentencing Guideline 2D1.1, which might have given Smack a lower offense level hence a lighter sentence had he been able to establish either that (a) he had not agreed to transact in such a large quantity of cocaine, or (b) he did not intend to provide, or was not reasonably capable of providing, the funds necessary to complete the transaction agreed to in a reverse sting initiated by the Drug Enforcement Administration with Smack and a confederate, and instead simply stipulating in the plea agreement to Smack's involvement with ten kilograms of cocaine.
Because of the odd procedural history of the case, the District Court never effectively conducted a § 2255 hearing. We have enough of a record to conclude that Smack does meet the first prong of the test for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), because of the efficacy of his contentions as referenced above. We cannot, however, determine whether the second Strickland prong is met. This is because no record was ever developed on the factual questions of intent, capability, and agreement that might bear on Smack's sentence—and hence on whether he was prejudiced by receiving the sentence he did. We will therefore remand for further consideration by the District Court at a § 2255 hearing and for possible resentencing. We also call upon the U.S. Sentencing Commission to revise Application Note 12 to clarify the scope of drug transactions to which the intent and capability defenses apply (and, indeed, if they are defenses or elements), issues that have divided the federal appellate courts.
I. Facts and Procedural History
During January of 1999, FBI agents monitored several conversations between Michael Reis—a witness cooperating with the FBI—and John Shields. These conversations concerned the purchase by Shields and others of varying quantities of cocaine from Reis. In some of these calls, Shields discussed his associate, Smack, who would be helping with the purchase and distribution of the cocaine.
The precise quantity of cocaine involved in the agreement is difficult to pin down; indeed, it is for this very reason that we will remand to the District Court to determine in the first instance just what the parties contemplated. It might have been as much as five kilograms, plus five more on credit, as Shields and Reis discussed initially. When Reis met Shields and Smack to complete the transaction on January 29 (after at least eight phone conversations between Reis and Shields), they discussed paying $54,000 for three kilograms, with four more kilograms to be provided on credit. But Shields had brought only about $18,000, enough to purchase one kilogram of cocaine. Shields claimed that he would have the remainder of the money in a few hours. Whatever the agreement, this was a reverse sting—"an operation in which a government agent sells or negotiates to sell a controlled substance to a defendant," USSG § 2D1.1, comment. (n.14)—and Shields and Smack were arrested immediately upon taking delivery of one kilogram of cocaine.
Shields and Smack were both indicted. Shields pleaded guilty pursuant to a cooperation plea agreement with the government, and in his sentencing memorandum argued that he and Smack had not had the wherewithal to engage in a ten-kilogram transaction; to the contrary, he submitted in his sentencing memorandum that they were never looking for more than one or two kilograms, and that even the $18,000 they did have had been supplied by a third party.
Smack also pleaded guilty. His agreement stipulated that the base offense level under the U.S. Sentencing Guidelines ("USSG" or "Guidelines") for the offense was 32, because he had attempted to purchase with the intent to distribute ten kilograms of cocaine. Smack was sentenced in a separate proceeding from Shields. After receiving the benefit of a three point reduction for acceptance of responsibility, Smack was sentenced to 120 months imprisonment, five years supervised release, and a special assessment of $100.
Neither at sentencing, nor, it appears, in the process of negotiating Smack's plea agreement, did Smack's counsel raise the issue of the applicability of Application Note 12 to USSG § 2D1.1 ("Note 12") and United States v. Raven, 39 F.3d 428 (3d Cir. 1994). As we discuss in some detail below, it is Note 12 which controls the quantity used for Guidelines purposes in prosecutions arising out of stings, reverse stings, and other situations where the delivered quantity of controlled substance may differ from the agreed-upon quantity. In Raven we indicated that (a prior version of) Note 12 applied to reverse stings, and held that, when a defendant puts his intent and ability to consummate a proposed transaction in issue, the government is required to prove the defendant's intent and ability. Smack asserts on appeal that his counsel's performance was deficient in failing to press the Note 12 / Raven issue and instead advising him to stipulate to a quantity (ten kilograms) at the upper bound of what the parties had considered in early negotiations.
After sentencing, Smack filed a pro se motion under 28 U.S.C. § 2255 alleging ineffective assistance of counsel. That motion included the ineffectiveness claim pressed here, a claim that counsel had failed to file a notice of appeal as Smack had requested, and other claims of ineffectiveness. The District Court denied that motion and denied a certificate of appealability, but this Court granted a certificate of appealability and remanded to the District Court for a hearing on whether Smack's counsel had indeed failed to file a requested notice of appeal. At that hearing, Smack was represented by the Federal Defender. The government reported that efforts to reach Smack's original (privately retained) counsel had been unsuccessful. (Indeed, even as of the date of oral argument in this case, ...