US v. Brown: In 2016, Brown was indicted on four counts of possession with intent to distribute crack cocaine and one count of being a felon in possession of a firearm, for which he faced a combined total maximum sentence of 90 years in prison. Brown’s initial attorney negotiated with the Government, who eventually offered a plea bargain in which Brown would plead guilty to the firearm charge, capping Brown’s exposure at 10 years I prison. Brown turned down the offer because he felt like his lawyer “could’ve got him a better plea.”
New counsel was appointed and he and Brown discussed the same offer, with counsel erroneously advising Brown that it “did not matter whether he accepted the plea agreement because the guideline range would be the same” and that Brown “would be facing a statutory maximum of ten year’ imprisonment regardless of whether he accepted a plea offer or not.” Brown rejected the agreement and pleaded guilty to all five charges, during a Rule 11 colloquy in which he stated that he understood the statutory maximum for each offense. The district court eventually sentenced Brown to 210 months in prison – an upward departure from the 87-108 month Guideline range and seven-and-a-half years longer than the maximum sentence under the plea agreement.
Brown filed a §2255 motion, alleging ineffective assistance of counsel with regard to advice as to the effect of agreeing to the plea bargain (or not). The Government conceded counsel had rendered deficient performance, but argued Brown could not show prejudice. The district court agreed, applying the Supreme Court’s decision in Lee v. US and holding that Brown could not show contemporaneous evidence that he would have accepted the plea bargain if properly advised, rather than post hoc regrets about his decision.
A divided Fourth Circuit reversed the denial of Brown’s §2255 motion. First, it concluded that review was de novo, although the district court had held an evidentiary hearing, because the lower court’s ultimate ruling “rendered a conclusion, but made no findings of fact” that would only be reviewed for clear error. Second, the court concluded that the district court had misapplied Lee, which dealt with ineffective assistance claims where plea bargains were accepted, but not rejected (which the Supreme Court in Lee identified as being different beasts). Brown was not required, therefore, to show contemporaneous evidence that he would have accepted the plea agreement if properly advised. It was enough that Brown testified he would have taken the deal, that he eventually pleaded guilty to more serious charges, and that the end result would have been more favorable to him if he had taken the plea.
Judge Rushing dissented, relying on Lee and applying clear error.
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