The PSR must contain, among other things: information about the
defendant's history and characteristics, including any prior
criminal record; the classification of the defendant and his
offense under categories established by the Sentencing
Commission in 28 U.S.C. § 994(a); and the kinds of sentence and
the sentencing range suggested for such a category of offense
committed by such a category of defendant as set forth in
28 U.S.C. § 994(a)(1). See FED. R. CRIM. P. 32(b)(4)(A) and (B).
In the PSR submitted in this case, the probation officer
determined that the base offense level for the defendant's
offense was 30. The probation officer then reduced the offense
level by three points, to 27, because the defendant had timely
accepted responsibility for the offense. See U.S.S.G. § 3E1.1.
The probation officer also indicated that the defendant had no
prior involvement with drug trafficking. See PSR. The
Probation Office assigned a criminal history category of II to
the defendant based on a prior shoplifting conviction for which
the defendant was on probation at the time of his arrest for the
instant offense. The corresponding Sentencing Guidelines range
of imprisonment for the defendant's offense was 78 to 97 months.
C. The Sentencing
The charged offense in this matter was the defendant's first
felony conviction as well as his first drug-related conviction.
See PSR at 5. At the sentencing hearing, defense counsel
remarked that "there should be some way that the court should
have some discretion to give [the defendant] a sentence of less
than 78 months if the court is so inclined to grant him a
sentence at the low end of the guidelines." Tr. of Sentence Hr'g
dated Dec. 3, 1997 ("Tr.IV") at 5. Defense counsel did not,
however, request a downward sentence adjustment under U.S.S.G. §
3B1.2, nor did he adduce any other reason or authority for
reducing the sentence below the mandatory minimum. The court
ultimately accepted the findings and conclusions in the PSR and
sentenced the defendant to a term of 78 months imprisonment,
followed by a 5-year period of supervised release and a special
assessment of $100. See id. at 7.
III. LEGAL STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984), the Supreme Court articulated a two-part
test for ineffective assistance of counsel. Under the first
prong, the defendant must show that his counsel's performance
"fell below an objective standard of reasonableness." See id.
at 687, 104 S.Ct. 2052. If the defendant meets the first prong,
he must show that there is a "reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different." Id.; see also United
States v. Burch, 156 F.3d 1315, 1326 (D.C.Cir. 1998), cert.
denied, 526 U.S. 1011, 119 S.Ct. 1155, 143 L.Ed.2d 220 (1999);
accord United States v. Hoyle, 33 F.3d 415, 418 (4th Cir.
1994). In this context, a "reasonable probability" means "a
probability sufficient to undermine confidence in the outcome."
United States v. Thompson, 27 F.3d 671, 675 (D.C.Cir. 1994)
(quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). The
court must begin with a strong presumption that "counsel's
conduct falls within the wide range of reasonable professional
assistance." See Strickland, 466 U.S. at 688-89, 104 S.Ct.
2052. "Because advocacy is an art and not a science, and because
the adversary system requires deference to counsel's informed
decisions, strategic choices must be
respected . . . if they are based on professional judgment."
Id. at 681, 104 S.Ct. 2052.
A. Prong One: Defense Counsel's Failure to Seek Potentially
Fruitful Downward Adjustment Under U.S.S.G. § 3B1.2 Falls
Outside "Prevailing Professional Norms"
"Familiarity with the structure and basic contents of the
Guidelines has become a necessity for counsel who seek to give
effective representation." United States v. Gaviria,
116 F.3d 1498, 1512 (D.C.Cir. 1997) (quoting United States v. Day,
969 F.2d 39, 43 (3d Cir. 1992)). In United States v. Soto,
132 F.3d 56 (D.C.Cir. 1997), the D.C. Circuit held that a defense
lawyer's failure to seek a potentially fruitful downward
adjustment under section 3B1.2 satisfied the first prong of
Strickland. In Soto, defense counsel sought a downward
adjustment for his client under U.S.S.G. § 5K2.0 in two separate
sentencing memoranda and also referred once to section 3B1.2 in
each memorandum. See id. at 58. The Court determined that it
was not enough for defense counsel to simply mention section
3B1.2. See id. Rather, the Court interpreted Strickland's
professional-norm standard as requiring defense counsel to
"specifically . . . request an adjustment under section
3B1.2." See id. at 58 (emphasis added) (quoting United States
v. Foster, 988 F.2d 206, 210 (D.C.Cir. 1993)). The Court
explained that "[w]hether lawyers get the Guidelines wrong by
misinterpreting the implication of a particular provision
(Gaviria) or by failing altogether to raise a potentially
helpful provision (this case), such drastic missteps clearly
satisfy Strickland's first test." Soto, 132 F.3d at 59.
The instant case arguably involves an even more "drastic
misstep" than the one in Soto. Unlike defense counsel in
Soto, Mr. Akintomide's counsel did not mention section 3B1.2
in his sentencing arguments, much less seek such an adjustment
by way of another Guideline provision. Rather, defense counsel
stated in conclusory fashion that "there must be some way" for
this court to give the defendant less than 78 months
imprisonment. See Tr. III at 5. In short, defense counsel
failed to demonstrate "familiarity with the structure and basic
content of the Guidelines" as required by United States v.
Gaviria, 116 F.3d at 1512. This was an error so serious as to
deny the defendant his Sixth Amendment right to counsel. See
Soto, 132 F.3d at 59. Accordingly, the court determines that
defense counsel's failure to failure to request a downward
adjustment under section 3B1.2 satisfies the first prong of the
Strickland test because such representation fell outside the
prevailing norms of professional conduct.
B. Prong Two: There is a Reasonable Probability that the
Defendant's Sentence Would Have Been Different but for
Counsel's Unprofessional Errors
1. Standard for Downward Adjustment Under Section 3B1.2