Court distinguishes ineffective assistance and plain error

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A North Carolina “career offender” serving 25 years after pleading guilty to gun and drug charges is looking at some degree of relief after the 4th U.S. Circuit Court of Appeals ruled Dec. 21 that the standards of review for plain error and for ineffective assistance of counsel are different.

Appellant Jolon Carthorne Sr. in 2010 was found to be a career offender, thanks in part to a previous Virginia conviction for assault and battery on a police officer, or ABPO. His trial counsel made no objection to the designation and did not challenge whether assaulting an officer was a requisite crime of violence. The attorney did ask for a variance based on the facts of the prior case, an incident where Carthorne spit on an officer but did not otherwise harm him or her.

The probation officer who recommended in his presentence report that Carthorne be designated as a career offender under the United States Sentencing Guidelines, and who concluded that ABPO is a violent crime under section 4B1.2(a) of the guidelines, set Carthorne’s sentencing range between 322 and 387 months. U.S. District Judge William Osteen Jr. adopted the probation officer’s recommendation that ABPO qualifies as a predicate crime of violence, and sentenced Carthorne to 300 months.

Error, but not plain

Had the trial court not adopted the recommendation and classified Carthorne as a career offender, his sentence would have been at least 7 ½ years shorter.

In a 2013 appeal to the 4th Circuit, Carthorne argued that the district court erred in its career offender determination, because ABPO was not a crime of violence. The court reviewed the claim for plain error, since the objection was not raised at sentencing, and held that while ABPO was not “categorically” a crime of violence because the “slightest touching” could trigger the charge, the district court did not plainly err because precedent did not require a finding that ABPO did not qualify as a violent crime under the residual clause. Further, there was at the time a circuit split on whether ABPO qualified under the residual clause.

Another shot

In May 2014, Carthorne unsuccessfully motioned to have his sentence vacated, arguing to the district court that by failing to object to the classification at sentencing, his trial lawyer provided ineffective assistance of counsel. The court found that while the error satisfied the “prejudice prong” of Strickland v. Washington, it did not satisfy the “performance prong” for reasons similar to those expressed by the 4th Circuit in not finding plain error. The 4th Circuit granted a certificate of appealability on the issue, fielding Carthorne’s argument that the absence of plain error on direct appeal does not constitute a basis for denying relief on collateral review for ineffective assistance of counsel. Carthorne asserted that the district court conflated the two standards of review, failing to examine the duties owed by an attorney to his client. Further, Carthorne argued, he was entitled to resentencing because of his attorney’s deficient performance.

Different standards

The government contended that any error by Carthorne’s trial attorney was not plain because of the unsettled precedent regarding whether ABPO categorically qualified as a violent crime.

The 4th Circuit did not agree, first considering whether the plain error standard and the ineffective assistance of counsel standard require “equivalent outcomes.”

The plain error standard, Judge Barbara Milano Keenan wrote for the court, reflects the view that a defendant’s attorney, not the court, bears the primary responsibility for protecting the defendant’s interest at trial.

“An error can be ‘plain’ only on the basis of settled law,” Keenan wrote.

On an issue such as this, where a circuit split existed but no Supreme Court or 4th Circuit precedent was available, the unanimous court found that there is no plain error when a district court follows the reasoning of another circuit.

While plain error review is used to correct only egregious errors by a trial court, ineffective assistance inquiries on collateral review focuses more on an attorney’s duty to raise critical issue for a court’s consideration. Those inquiries also focus more on the objective reasonableness of counsel’s performance and, unlike plain error review, the ineffective assistance standard may require counsel to raise material issues in the absence of decisive precedent.

Further, claims of ineffective assistance are evaluated in light of the available authority at the time of counsel’s allegedly deficient performance, but the plain error inquiry applies precedential authority existing at the time of appellate review.

“These differences, considered collectively, demonstrate why claims of ineffective assistance of counsel are not limited by an appellate court’s analysis whether a trial court plainly erred,” the court wrote.

Readily available

Despite trial counsel’s contention that while he could not develop a valid argument for his client, he did his research and “labored over that case long,” the court found “clear Supreme Court and Fourth Circuit precedent” detailing how to determine whether a crime qualified as a predicate offense, and 4th Circuit and Virginia appellate court precedent “strongly” suggesting that ABPO does not qualify as a crime of violence.

The trial attorney, the court found, should have known that the precedent raised questions, and he had a duty to object to his client’s designation as a career offender. Instead, he referenced research addressing only the irrelevant question of whether spitting constitutes assault and battery.

The court found no strategic reasons that could have justified trial counsel’s failure to object to the career offender designation, Keenan wrote.

“Therefore, we hold that counsel’s failure to demonstrate a grasp of the relevant legal standards, to conduct basic legal research relating to those standards, and to object to the sentencing enhancement (even though there was a strong basis for such an objection), taken collectively, constituted deficient performance,” she wrote.

The court vacated the district court’s judgment and Carthorne’s sentence, and remanded for resentencing.

In a footnote, the court made clear that although an ineffective assistance of counsel claim may succeed even when a trial court has not committed plain error, it should not be understood that attorneys are to be held to a higher standard of legal proficiency than judges. It pointed to 2012’s Swanson v. United States, which noted that “in some respects, plain error review may be less demanding” than ineffective assistance of counsel review.

The 20-page decision is U.S. v. Carthorne (Lawyers Weekly No. 001-003-18). A digest of the opinion is available online at nclawyersweekly.com.

Follow Heath Hamacher on Twitter @NCLWHamacher