by Sam Rutherford

The U.S. Court of Appeals for the Third Circuit granted a federal prisoner’s habeas petition where his trial attorney failed to properly advise him of the mandatory sentences he would receive if he rejected the Government’s plea offer and proceeded to trial, holding that such misinformation constituted ineffective assistance entitling the prisoner to reinstatement of the rejected plea offer.

Background

In January 2010, Steven Baker robbed the First Atlantic Federal Credit Union in Neptune, New Jersey. He was apprehended, and the Government charged him with bank robbery by force and violence in violation of 18 U.S.C. §§ 2113(a) and using or carrying a firearm in furtherance of the robbery in violation of 18 U.S.C. § 924(c). Baker hired an attorney.

The Government offered Baker a plea deal in February 2010 in which it agreed to allow him to plead guilty as charged in exchange for a sentence between 15 and 17 years in prison, but he had to admit to two additional bank robberies from 2009 without being convicted of them. The offer remained open for a month.

Defense counsel met with Baker at the jail, explaining to him that if he rejected the offer, the Government would charge and try him not only for the two additional robberies but also two addition firearm charges under § 924(c). Counsel explained that if he were to be convicted, he would face a maximum sentence of 21 years for the three § 924(c) charges, consecutive to whatever sentence he received for the three robberies, for a total sentence range of 36 to 56 years’ imprisonment. Defense counsel also advised that Baker’s chances of receiving the maximum sentence were “slim to none.” Counsel’s contemporaneous notes from the conversation reflected that this was the advice she gave Baker.

Counsel’s advice concerning the sentence Baker would receive if he proceeded to trial was grossly inaccurate. In actuality, Baker faced a mandatory minimum sentence of 57 years in prison for just the three § 924(c) offenses, consecutive to the underlying bank robbery sentences. This mandatory minimum was based on the “stacking” provisions then in effect, which provided for a seven-year sentence for the first firearm conviction followed by 25-year sentences for each additional conviction. 18 U.S.C. § 924(c)(1)(C) (prior to the 2018 amendment); Deal v. United States, 508 U.S. 129 (1993) (stacking provision applies to multiple counts in same indictment).

Relying on counsel’s misinformation, Baker rejected the plea offer and proceeded to trial on all six charges. He was convicted. Baker said that he did not learn about the 57-year mandatory sentence until he reviewed the Government’s pre-sentence report. The U.S. District Court for the District of New Jersey sentenced Baker to 57 years for the three § 924(c) convictions, consecutive to an 87-month sentence for the three bank robbery convictions. Still represented by the same attorney who misadvised him during plea negotiations, Baker timely appealed and lost.

In 2014, Baker filed a pro se habeas petition in the District Court pursuant to 28 U.S.C. § 2255 and asked the court to appoint counsel. The District Court appointed the Office of Federal Public Defender, which ultimately raised a claim of ineffective assistance based on Baker’s attorney’s failure to properly advise him of the stacking provision during plea negotiations. An evidentiary hearing was held on this claim, during which defense counsel’s handwritten notes from the plea discussion were admitted into evidence.

The District Court denied the petition in 2023. Although acknowledging that defense counsel failed to properly advise Baker concerning the mandatory 57-year sentence, the court held that this deficient performance was not sufficiently prejudicial because Baker could not show he would have accepted the Government’s plea offer in light of his repeated assertions that he was innocent. The court also held that Baker’s testimony at the evidentiary hearing that he would have accepted the offer was not credible.

Baker timely appealed, and the Third Circuit reversed.

Analysis

The sole issue on appeal was “whether Baker’s plea counsel was constitutionally ineffective when she provided him with inaccurate advice regarding his sentence exposure for the three potential Section 924(c) firearm charges as he considered the plea offer.” The District Court’s resolution of this claim was reviewed de novo with respect to its legal conclusion and for clear error regarding its factual determinations. Lambert v. Blackwell, 134 F.3d 506 (3d Cir. 1997).

Defendants have the Sixth Amendment right to the effective assistance of counsel during the plea-bargaining stage of a criminal case. Lafler v. Cooper, 566 U.S. 156 (2012); Missouri v. Frye, 566 U.S. 134 (2012); Hill v. Lockhart, 474 U.S. 52 (1985). To establish ineffective assistance, defendants must show that counsel’s performance was deficient in that it fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668 (1984). Defendants must also establish prejudice resulting from this deficiency, meaning that but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id.

Defense attorneys have a duty to “give a defendant enough information to make a reasonably informed decision whether to accept a plea offer.” United States v. Bui, 795 F.3d 363 (3d Cir. 2015) (internal quotation marks and citations omitted). Counsel must therefore inform the defendant “of the comparative sentence exposure between standing trial and accepting a plea offer [because it] will often be crucial to the decision whether to plead guilty.” United States v. Day, 969 F.2d 39 (3d Cir. 1992). Counsel also has a duty to conduct necessary legal research to impart accurate information, and the failure to do so “is a quintessential example” of deficient performance. Hinton v. Alabama, 571 U.S. 263 (2014).

The Court had “little difficulty” concluding that Baker’s attorney’s failure to adequately apprise him of the 57-year mandatory sentence he faced following a guilty verdict on the § 924(c) charges was objectively unreasonable deficient performance under Strickland’s first prong. The stacking provision under that statute was “established and longstanding” in 2010, so there was no legitimate reason for counsel’s misadvise concerning its application to Baker. He was entitled to know about it when assessing the Government’s plea offer. The Court determined that the District Court therefore correctly concluded that Baker’s attorney’s misinformation during plea negotiations was constitutionally deficient.

The next issue was whether this deficient performance caused sufficient prejudice to satisfy Strickland’s second prong. In the context of plea bargaining, defendants need only show a “reasonable probability” that, but for counsel’s deficient performance, he would have accepted the plea offer. Lafler. The District Court concluded that Baker failed to make this showing by (1) concluding that his testimony at the evidentiary hearing that he would have accepted the Government’s offer had he known about the 57-year mandatory sentence was not credible and (2) relying on Baker’s protestations of innocence during trial and sentencing.

However, the Court noted that a defendant’s statement that he would have accepted a plea offer absent counsel’s deficient performance in combination with “significant disparities in sentence exposure can be sufficient to establish a reasonable probability the defendant would have made an agreement.” See, e.g., Mask v. McGinnis, 233 F.3d 132 (2d Cir. 2000); Griffin v. United States, 330 F.3d 733 (6th Cir. 2003). The Court explained that reliance on sentence exposure disparities in assessing prejudice “makes good sense” because it “offers an objective piece of evidence in an inherently speculative inquiry that requires [courts] to imagine a counterfactual scenario in which a defendant possessed information relevant to his plea calculus that he did not actually have due to an error by counsel.” United States v. Gordon, 156 F.3d 376 (2d Cir. 1998); Smith v. United States, 348 F.3d 545 (6th Cir. 2003).

Applying this test to Baker’s case showed that he proved sufficient prejudice under Strickland’s second prong because, at best, counsel informed him he faced a maximum possible sentence of 56 years in prison by proceeding to trial, and further stated that there was a “slim” chance he would actually receive it; whereas, he actually faced a mandatory 57-year term for just the firearm charges plus an additional 87-108 months for the robberies. “This great sentence-exposure disparity, the true scope of which Baker did not know due to his counsel’s underestimate of the sentence for the potential firearm charges, weigh[ed] heavily in favor of prejudice,” according to the Court. United States v. Morris, 470 F.3d 596 (6th Cir. 2006). Thus, the Court ruled that the District Court erred in concluding otherwise.

The Court also ruled that the District Court erred in making adverse credibility determinations against Baker, which was primarily based on his assertions of innocence at trial and discrepancies in his testimony at the evidentiary hearing about whether he told his trial attorney he had committed the robberies. But trial counsel testified that Baker had in fact admitted guilt to her during plea negotiations, which supported “existence of a reasonable probability that he would have been willing to plead guilty in order to accept the Government’s plea offer.”

And while a defendant’s protestations of innocence may sometimes undermine the likelihood that he would have accepted a plea offer, see Sanders v. United States, 341 F.3d 720 (8th Cir. 2003), “courts have typically noted that insistence on innocence does not by itself determine whether a defendant can show a reasonable probability he would have accepted a plea but for counsel’s error.” Cullen v. United States, 194 F.3d 401 (2d Cir. 1999); Osley v. United States, 751 F.3d 1214 (11th Cir. 2014). The Court announced its agreement with the case law from the other circuits and provided the following “considerations that may counsel for limiting the weight of such evidence as a general matter.”

First, defendants have a constitutional right to avoid self-incrimination, so weighing a defendant’s insistence on innocence against him when assessing prejudice under Strickland “risks unduly deterring defendants from exercising this constitutional right.” Second, defendants may plead guilty under plea agreements without expressly admitting guilt, North Carolina v. Alford, 400 U.S. 25 (1970), so maintaining innocence “is not wholly at odds with a defendant’s claim that he would have been willing to plead guilty pursuant to an agreement but for his counsel’s error.” And third, while a defendant’s insistence on innocence during plea negotiations may weigh against finding that he would have accepted a plea absent counsel’s misinformation, such insistence following the rejection of a plea “is less likely to be probative of the defendant’s state of mind and calculus during plea negotiations.”

Applying these principles to Baker’s case tipped in favor of finding prejudice. He admitted guilt to his attorney during plea negotiations and only maintained his innocence after rejecting the Government’s plea offer on advice of counsel. Thus, Baker’s claim of innocence was not the type of “steadfast insistence” courts have previously relied on to find that a defendant would not have accepted a plea agreement under any circumstance but instead was based on advice from an attorney who had already misinformed him during plea negotiations, the Court reasoned.

In light of these facts, the Court held that Baker “demonstrated a reasonable likelihood he would have taken the plea offer but for his counsel’s error in calculating his sentence exposure on the Section 924(c) counts.” The District Court erred in concluding otherwise.

Conclusion

Accordingly, the Court reversed the District Court order denying Baker’s habeas petition and remanded the case “with an instruction to order the Government to reoffer the original plea agreement to Baker.” See: Baker v. United States, 109 F.4th 187 (3d Cir. 2024).

Editor’s note: Anyone interested in the issue of defense counsel providing erroneous information regarding sentencing in connection with a plea offer is strongly encouraged to read the Court’s full opinion.   

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