little better, if at all, than what
he could expect to get if he went to trial and lost.
At the Court's importuning the government had reopened plea
negotiations, extending Price a new offer of 42 months' imprisonment.
Once again Price rejected it, on the record in open court. Although in
each instance of Price's rejection of a plea offer the record supports
the conclusion that Price himself made the final decision, he did so upon
the basis of the same erroneous advice Mr. Zucker had given him earlier
in relation to the first offer. In that regard, the record also makes
clear that it was Mr. Zucker's mistaken belief from the beginning that
the government had no evidence of a conspiracy, at least as to Price, and
that the most the government could prove was that Price had engaged in
multiple hand-to-hand streetside marijuana sales for his own personal
Effective assistance of counsel is, of course, a constitutional
requirement for a defendant at all stages of a criminal case, from
pre-trial plea negotiations through sentencing. Under the familiar
Strickland v. Washington test, however, unless counsel's performance is
so deficient as to fall below "an objective standard of reasonableness,"
and the deficiency is so "prejudicial" in the sense that there is a
"reasonable probability that. . .the result of the proceeding would have
been different," Strickland, 466 U.S. 668, 694 (1984), a defendant is
entitled to no relief from the consequences.
The D.C. Circuit has held that a Sixth Amendment violation can be
predicated upon counsel's defective representation of a defendant in
connection with pre-trial plea bargaining, and that, under Strickland,
prejudice can be established if there is a reasonable probability that a
guilty plea would have ensued, i.e., that wired co-defendants would also
have pleaded guilty (or been unwired) and the defendant's own plea would
have been accepted by the court. United States v. Gaviria, 116 F.3d 1498,
1511-13 (D.C. Cir. 1997) see also United States v. Day, 969 F.2d 39 (3d
Upon this record, the Court concludes that Price has satisfied both
components of the Strickland test: First, he has shown his lawyer to have
made errors "so serious that [he] was not functioning as the `counsel'
guaranteed [him] by the Sixth Amendment," 466 U.S. at 687, and, second,
that there is more than a "reasonable probability" that, but for
counsel's unprofessional errors, the result would have been different.
Id. at 694. This Court made apparent its intention to accept Price's plea
offer — indeed had urged Price to take it on May 18th — and
in fact accepted comparable pleas of Price's co-defendants the following
The question thus becomes the relief to which Price is entitled. Some
relief is in order. See Glover v. United States, 531 U.S. 198 (2001);
U.S. v. Day, supra, 969 F.2d at 44-45. In Day the Third Circuit
considered a number of possible approaches open to a sentencing court,
including specific enforcement of the
hypothetical plea bargain,
reopening plea negotiations, or a retrial, endorsing or rejecting none
but observing that the district court "would have considerable discretion
in fashioning a remedy appropriate under the circumstances." Id. at 47.
Quoting from United States v. Morrison, 449 U.S. 361, 364 (1981), the
Third Circuit said the remedy "should be tailored to the injury suffered
and should not unnecessarily infringe on competing interests." Day, 969
F.2d at 47.
One possibility in this case would be to order a new trial upon motion
pursuant to Fed.R.Crim.P. 33. Counsel's constitutionally defective
performance did not, however, extend to the trial itself,*fn3 and to
order a new trial here would impose the burden of counsel's errors
entirely on the government which was in no respect at fault. A second
option might be to impose a sentence consistent with one or more of the
spumed plea offers, but once again the penalty for defense counsel's
dereliction would thereby be visited on the government, and would,
moreover, be tantamount to specific enforcement of an executory bargain
that never matured into a binding plea.
Yet a third possibility is a downward departure in defendant's Criminal
History Category or Offense Level. Although it appears that the D.C.
Circuit has yet to consider the issue, at least three other federal
appellate courts have held that substandard legal representation, even
when amounting to prejudicial ineffective assistance of counsel of
constitutional proportions in conjunction with pre-trial plea
bargaining, is not a legitimate ground for a downward departure under
U.S.C. § 3553(b) and U.S.S.G. § 5K2.0. See United States v.
Bicaksiz, 194 F.3d 390, 397-98 (2d Cir. 1999); United States v.
Martinez, 136 F.3d 972, 979-80 (4th Cir. 1998); United States v.
Crippen, 961 F.2d 882, 883-85 (9th Cir. 1992). There are apparently no
appellate decisions to the contrary.*fn4
In this case, however, the Guidelines have been rendered essentially
irrelevant: No rational basis appears to the Court to depart downward in
any particular order of magnitude consistent with the Guidelines, yet it
is clear that the defendant Gary Price is a victim of a Sixth
Amendment violation requiring some redress. The Court will thus impose the
minimum statutorily permissible sentence. namely, 120 months, pursuant to
21 U.S.C. § 846, 841(b)(1)(A)(vii), as representing a fair and just
compromise sentence in the circumstances.
It is, therefore, this 13th of December 2002,
ORDERED, that the defendant Gary Price be committed to the custody of
the U.S. Bureau of Prisons for a term of 120 months, to be followed by a
five-year term of supervised release, and the Judgment and Commitment
shall be entered accordingly.