On Appeal from the United States District Court for the Middle District of Pennsylvania. (D.C. No. 98-cr-00322). District Judge: Honorable James M. Munley.
The opinion of the court was delivered by: Fisher, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) December 6, 2005
Before: RENDELL, FISHER and VAN ANTWERPEN, Circuit Judges.
Brian Booth appeals from the District Court's decision denying his motion to vacate his sentence brought pursuant to 28 U.S.C. § 2255. Booth was convicted by a jury on two counts relating to his role in setting off a pipe bomb at an apartment building. Booth contends that his trial counsel -- aware of the substantial evidence against Booth and that Booth did not want to cooperate with the Government -- rendered ineffective assistance of counsel by not informing Booth that he could have entered an "open" guilty plea to both counts without proceeding to trial, potentially entitling him to a three-level reduction for acceptance of responsibility under the United States Sentencing Guidelines.*fn1 Because we conclude that Booth's motion set forth sufficient allegations to require an evidentiary hearing, we will vacate the judgment of the District Court and remand for an evidentiary hearing on the merits of Booth's claims.
Early in the morning of May 15, 1998, simultaneous explosions from two pipe bombs rocked a multi-unit rental property located in Stroudsburg, Pennsylvania. Fortunately, none of the seven sleeping residents inside the apartment building was injured. The blast, however, caused significant property damage. An investigation following the incident revealed that the pipe bombs, which were made out of copper pipes and packed with smokeless powder, had been placed on the rear kitchen door and the front side door of the building. Additional evidence uncovered during the investigation overwhelmingly established that Booth was responsible for the explosions.
Thereafter, the Government indicted Booth on two counts. Count one charged Booth with maliciously damaging by explosives property affecting interstate commerce, in violation of 18 U.S.C. § 844(i). Count two charged Booth with possession of an unregistered firearm in the form of a bomb, in violation of 18 U.S.C. §§ 5841, 5861(d), and 5871.
Prior to trial, the Government and Booth's trial counsel entered into plea negotiations. The Government's initial plea offer was for Booth to plead guilty to count one of the indictment. In exchange, the Government offered to dismiss count two of the indictment, recommend that Booth be sentenced to the mandatory minimum sentence of 60 months imprisonment, and possibly bring a motion for downward departure pursuant to 18 U.S.C. § 3553(e) if it determined that Booth rendered substantial assistance in the investigation of a possible co-defendant.
Booth rejected the Government's plea offer and made a counter-offer to plead guilty to count two of the indictment in exchange for the Government's dismissal of count one. The Government informed Booth's counsel that it would consider the plea to the lesser charge only if Booth would give a proffer concerning his own culpability and the criminal involvement of any other participants involved in the bombing. Booth balked at the proposal because he did not want to cooperate against anyone else involved in the crime.
Because the parties could not agree on an acceptable resolution of the charges, Booth proceeded to a jury trial. The jury subsequently found Booth guilty of both charges.*fn2
At the sentencing hearing, the District Court determined that Booth's sentencing range under the Sentencing Guidelines was 78 to 97 months imprisonment. The District Court sentenced Booth to concurrent 90-month sentences of imprisonment, concurrent three-year terms of supervised release, and restitution in the amount of $2,052.*fn3 The District Court did not consider a downward adjustment for acceptance of responsibility pursuant to section § 3E1.1 of the Sentencing Guidelines because Booth had proceeded to trial and challenged his guilt. We affirmed the judgment of conviction on March 14, 2001.
On June 13, 2002, Booth filed a pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Booth alleged in his motion that his trial counsel, aware that the evidence against Booth was overwhelming and that Booth did not want to cooperate with the Government, did not inform Booth that he could have entered an open guilty plea to both counts of the indictment, likely entitling him to a three-level reduction for acceptance of responsibility. Responding to Booth's motion to vacate sentence, the Government argued that "acceptance of responsibility was not an option in [Booth's] case because of the mandatory minimum sentence applicable to the charge against him." In addition, the Government ...