United States v. Mouling, Willie

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 4, 2008 Decided March 6, 2009

Reissued: March 27, 2009

No. 05-3206

UNITED STATES OF AMERICA,

APPELLEE

v.

WILLIE J. MOULING,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 04cr00189-01)

Lisa B. Wright, Assistant Federal Public Defender,

argued the cause for appellant. With her on the briefs was

A. J. Kramer, Federal Public Defender. Neil H. Jaffee,

Assistant Federal Public Defender, entered an appearance.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Jeffrey A.

Taylor, U.S. Attorney, and Roy W. McLeese III and Elizabeth

Trosman, Assistant U.S. Attorneys.

Before: SENTELLE, Chief Judge, TATEL, Circuit Judge,

and WILLIAMS, Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Appellant challenges his

conviction and sentence on drug and gun offenses, arguing (1)

that the district court’s use of compound voir dire questions

prevented him from learning about possible juror bias; (2) that

the district court committed multiple errors in determining his

sentence; and (3) that he received ineffective assistance of

counsel at trial. Although we have repeatedly expressed our

concerns about compound voir dire questions, in this case we

are limited to reviewing the district court’s actions for plain

error, a showing that appellant fails to make. Nor have we

any basis for vacating the sentence: appellant’s Apprendi

claim fails under plain error review, the sentence is

reasonable, and appellant points to no evidence that the

district court misunderstood its sentencing authority. In

keeping with our general practice, however, we remand to the

district court for an evidentiary hearing on appellant’s

ineffective assistance of counsel claims because the trial

record does not conclusively show whether appellant is

entitled to relief.

I.

The case against appellant Willie Mouling stems from

cocaine and a handgun found in a parka abandoned by a

suspect who fled from police after having been stopped in

connection with a hit-and-run accident. Although never

charged with the hit-and-run that originally precipitated the

investigation, Mouling was charged with and tried for

possession of cocaine base with intent to distribute, 21 U.S.C.

§ 841, using or carrying a firearm during a drug-trafficking

offense, 18 U.S.C. § 924(c), and unlawful possession of a

firearm and ammunition by a convicted felon, 18 U.S.C. §

922(g)(1). At trial Mouling’s defense centered on a theory of

mistaken identity, namely that the police chased a different

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individual, the owner of the drug- and gun-containing parka,

and ended up arresting Mouling instead.

Events leading up to the chase began when D.C.

Metropolitan Police Department Officer Seth Anderson

responded to the hit-and-run report and interviewed a witness

who described the driver as a black male with a slim build,

wearing black pants and a black parka with gray fur around

the hood. Canvassing the area, Anderson saw an individual

matching this description climbing into a parked blue Isuzu

SUV. Anderson blocked the SUV with his squad car and

questioned the driver. At trial Anderson testified that his

encounter with the suspect lasted one to one and a half

minutes. Anderson further testified that the individual

produced a Virginia driver’s license bearing the name Willie

Mouling, though a defense witness testified that the person he

saw talking to an officer next to the SUV was not Mouling,

but rather the owner of the SUV, whom the witness had

regularly seen around the neighborhood. Other defense

evidence indicated that Mouling drove an Accord, not an

SUV.

When Anderson told the suspect that he was investigating

a hit-and-run, the suspect became nervous and began reaching

into his pockets. Instructed by Anderson to remove his hands

from his pockets, the individual fled on foot, managing to slip

out of his parka when Anderson tried to grab him. Dropping

the parka, Anderson gave chase. The path of the chase was

disputed at trial, with Anderson’s description of the route

differing somewhat from another officer’s and from

measurements of the area taken by a defense investigator

indicating that the path Anderson described was actually

blocked by a fence. According to Anderson, he never lost

sight of the suspect and remained within fifteen feet of him

throughout the chase, which he said lasted less than a minute.

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In the end Anderson arrested Mouling in an alley behind a

neighboring street.

Returning to the vehicles, Anderson retrieved the

abandoned parka and discovered a loaded handgun inside.

Police also found three “cookies”—two of a white substance

and one of a cream-colored substance—in the coat, each in its

own plastic baggie. Neither the gun nor the bags yielded

usable fingerprints.

Anderson testified that Mouling twice signaled his

ownership of the parka by referring to it as “my” coat and by

stating in regard to the charges he was facing, “well, you

know what’s in the coat.” On cross-examination, however,

Anderson acknowledged that when Mouling first saw the

parka after his arrest, he denied it was his. Two of Mouling’s

neighbors testified they saw him that day wearing a black

quilted jacket with no hood, although they acknowledged they

had no idea how many coats Mouling owned. Mouling’s

booking photo showed him wearing a black quilted jacket

with a collar but apparently without a hood, and the inventory

of his clothing listed a black “jacket,” which the government

suggests he could have obtained from a family member or a

“sympathetic police officer,” Appellee’s Br. 22.

The jury convicted Mouling on all three counts. Given

Mouling’s criminal history category of IV, the presentence

report proposed a sentencing guidelines range of 168–210

months for drug possession based on a drug quantity of 50–

150 grams of cocaine base, plus a 60-month mandatory

sentence for using or carrying a firearm. The government

requested a 228-month sentence, which reflected the low end

of the guidelines range. Because Mouling’s trial counsel died

in a car accident before sentencing, replacement counsel

represented Mouling at sentencing.

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The trial court sentenced Mouling to 228 months: 168

months for drug possession and 120 months for gun

possession to be served concurrently, and a consecutive 60-

month sentence for using or carrying a firearm during a drug-

trafficking offense. The trial court also ordered concurrent

terms of supervised release: five years for drug possession,

three years for firearm use, and two years for gun possession.

Mouling appeals, objecting to the court’s conduct of voir

dire in selecting his jury, challenging several aspects of his

sentencing, and arguing that he received ineffective assistance

of counsel at trial. We address each challenge in turn.

II.

We begin with Mouling’s challenge to the district court’s

use of compound voir dire questions. Because we have

reviewed this particular district court’s voir dire questioning

multiple times, we offer only a brief description of the

practice. As we explained in United States v. West, 458 F.3d

1 (D.C. Cir. 2006), United States v. Littlejohn, 489 F.3d 1335

(D.C. Cir. 2007), and United States v. Harris, 515 F.3d 1307

(D.C. Cir. 2008), the district court’s practice was to ask

potential jurors several two-part questions, instructing them to

listen to both parts of the question before responding. The

first part of the question asked whether jurors had a certain

background characteristic or experience, and the second part

asked whether in light of that characteristic or experience they

thought they would have trouble being impartial. Only if a

potential juror would answer “yes” to both parts of the

question was she to raise her hand in response. If the answer

to either part of the question was “no,” the potential juror

wasn’t to respond at all. For example, the first part of one

question asked whether any potential juror or any close family

member or friend was “currently or previously employed by

any law enforcement agency.” Trial Tr. at 58 (Sept. 21,

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2004). The district court then listed various organizations that

he said qualify as law enforcement agencies, warned the

potential jurors not to raise their hands until he asked the

second part of the question, and then asked: “As a result of

that experience, do you believe that you, you personally

would be unable to be fair and impartial to both sides if

selected as a juror in this case?” Id. at 58–59. In addition to

the law enforcement employment question, the district court

posed compound questions on seven other topics: whether any

prospective jurors knew each other or had been involved in

criminal defense, studied law, served on a grand jury, served

on a petit criminal jury, participated in a crime-prevention

group, or had been the victim of any crime.

We have previously expressed “deep reservations about

[the district court’s] compound questions.” Littlejohn, 489

F.3d at 1343. As we explained in West, the problem with

compound questions is that they “prevent[] the parties from

learning the factual premise of the first part of the question,

relying instead upon the juror’s self-assessment of his or her

impartiality.” 458 F.3d at 10–11. Here, for example, if a

potential juror had actually been employed by a law

enforcement agency but thought she could nonetheless be

impartial, the question format would prevent the parties from

learning about and inquiring into the juror’s law enforcement

background altogether.

In all three of our prior cases, because defense counsel

timely objected to the compound questions, we reviewed the

conduct of voir dire for abuse of discretion, explaining that

reversal was warranted if the court abused its discretion and

there was substantial prejudice to the accused. See, e.g.,

Littlejohn, 489 F.3d at 1342. In West and Harris, although we

found the compound questions “troubling” and cautioned

against their use, Harris, 515 F.3d at 1311, we nonetheless

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saw no abuse of discretion because the defendants had other

means to learn the necessary information about potential

jurors, because their cases did not turn on police officer

credibility, and because the evidence against them was

otherwise strong. Id. at 1313; West, 458 F.3d at 8–9. By

contrast, in Littlejohn, where police officer credibility was

central to conviction and the evidence of guilt was otherwise

not overwhelming, we concluded that the compound

questions violated the defendant’s Sixth Amendment right to

an impartial jury and vacated the conviction. 489 F.3d at

1346.

Unlike in Harris, West, and Littlejohn, Mouling’s trial

lawyer failed to object at voir dire to the compound questions,

so our review is far more limited. See United States v.

Caldwell, 543 F.2d 1333, 1345 (D.C. Cir. 1975); FED. R.

CRIM. P. 52(b). Under plain error review, we may reverse

only if: “(1) there is error (2) that is plain and (3) that affects

substantial rights, and (4) we find that the error ‘seriously

affects the fairness, integrity or public reputation of judicial

proceedings.’” United States v. Baugham, 449 F.3d 167, 183

(2006) (quoting United States v. Olano, 507 U.S. 725, 732

(1993)).

Mouling argues that his case resembles Littlejohn, where

we held that the compound questions posed in that case

violated the Sixth Amendment. According to Mouling, the

law is therefore crystal clear, and the court committed plain

error when it employed such questions in empaneling his jury.

As the government points out, however, Littlejohn had not

been decided at the time of Mouling’s trial. According to the

government, any error in using compound questions could

therefore not have been “plain.” In response, Mouling cites

Johnson v. United States, 520 U.S. 461, 467–68 (1997), for

the proposition that the plainness of an error is assessed as of

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the time of appeal, not as of the time of trial. Since Littlejohn

was issued prior to this appeal, Mouling insists that the

district court’s error was plain.

Mouling’s reliance on Johnson is misplaced. In Johnson

“the law at the time of trial was settled and clearly contrary to

the law at the time of appeal.” 520 U.S. at 468. In such

circumstances, the Court explained, “it is enough that an error

be ‘plain’ at the time of appellate consideration.” Id. Here,

by contrast, the law was far from settled at the time of trial.

We had yet to decide West, Littlejohn, or Harris, and no other

D.C. Circuit precedent had clearly held that compound voir

dire questions constitute reversible error.

In circumstances like those we face here—where the law

is unsettled at the time of trial but settled at the time of

appeal—whether we assess error as of the time of trial or the

time of appeal remains an open question in this circuit.

Baugham, 449 F.3d at 183 (recognizing that the Supreme

Court has left the question “unresolved” but not deciding the

question for this circuit). We have twice declined to reach the

question because in those cases, even assuming any error was

plain, the defendants failed to show that the error affected

their substantial rights as required under the plain error test’s

third element. See id.; United States v. Johnson, 437 F.3d 69,

74 (D.C. Cir. 2006). Mouling, however, presents a closer

case. Like in Littlejohn, officer credibility was crucial to

Mouling’s conviction. The evidence on the central

question—whether Mouling was the individual stopped by

Officer Anderson and thus the owner of the parka—came

primarily, indeed almost entirely, from police officer

testimony. Officer Anderson identified Mouling as the SUV

driver he stopped for questioning and testified that he never

lost sight of the suspect during the chase and that Mouling

made comments indicating he owned the parka. That

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testimony was contradicted not only by a defense witness who

saw Anderson speaking to someone other than Mouling at the

SUV and by defense evidence indicating the chase route was

blocked by a fence, but also by another officer whose

description of the chase route differed from Anderson’s. To

convict Mouling, then, jurors had to credit Officer Anderson’s

version of events, making it all the more important for voir

dire to uncover any juror’s tendency to give undue weight to

officer testimony. Because of the similarities between

Mouling’s case and Littlejohn, where we found a

constitutional violation, whether the error affected Mouling’s

substantial rights presents a close question. As a result, we

must now resolve the question we have previously been able

to avoid: whether error can be “plain” when the law, though

unsettled at trial, becomes clear by the time of appeal.

After the Supreme Court issued its decision in Johnson,

the circuits have split on this question. See generally HARRY

T. EDWARDS & LINDA A. ELLIOTT, FEDERAL COURTS

STANDARDS OF REVIEW: APPELLATE COURT REVIEW OF

DISTRICT COURT DECISIONS AND AGENCY ACTIONS 92 (2007).

The Eleventh assesses error as of the time of appeal, United

States v. Smith, 459 F.3d 1276, 1283 (11th Cir. 2006), while

the Ninth does so as of the time of trial, United States v.

Turman, 122 F.3d 1167, 1170 (9th Cir. 1997). We agree with

the Ninth Circuit that Johnson represents an exception to the

general rule that error is assessed as of the time of trial, an

exception Johnson carved out because when the law is settled

at the time of trial, “objections are pointless,” id. at 1170, and

“[m]easuring error at the time of trial ‘would result in

counsel’s inevitably making a long and virtually useless

laundry list of objections to rulings that were plainly

supported by existing precedent,’” id. (quoting Johnson, 520

U.S. at 468). By contrast, where the law is unsettled at trial,

objections are far from pointless—they serve a valuable

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function, alerting the district court to potential error at a

moment when the court can take remedial action. Thus the

interest in requiring parties to present their objections to the

trial court, which underlies plain error review, applies with

full force. We therefore hold that where, as here, the law was

unsettled at the time of trial but becomes settled by the time of

appeal, the general rule applies, and we assess error as of the

time of trial.

Because at the time of Mouling’s trial, no clear circuit

precedent established the impropriety of compound voir dire

questions in circumstances similar to Mouling’s case, any

error in employing such questions cannot have been plain.

See United States v. Perry, 479 F.3d 885, 893 n.8 (D.C. Cir.

2007) (noting that “absent precedent from either the Supreme

Court or this court, [an] asserted error falls far short of plain

error” unless it violates a legal norm that is “absolutely clear

(for example because of the clarity of a statutory provision or

court rule)” (internal quotation marks and ellipses omitted)).

We therefore have no need to reach the plain error test’s

remaining two elements: whether the voir dire affected

Mouling’s substantial rights or “seriously affect[ed] the

fairness, integrity or public reputation of judicial

proceedings,” Olano, 507 U.S. at 732 (internal quotation

marks omitted).

III.

Appealing his sentence, Mouling argues that the district

court committed Apprendi error when it sentenced him

without a jury finding on the requisite quantity of drugs; that

it based its sentence on an unreasonable rationale; and that it

failed to recognize its authority to consider the sentencing

guidelines’ disparity between crack and powder cocaine.

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We start with Mouling’s argument that the district court

erred in sentencing him based on a drug quantity that the jury

never found beyond a reasonable doubt. Because Mouling’s

counsel failed to object on this ground at sentencing, our

review is once again limited to plain error. See United States

v. Johnson, 331 F.3d 962, 964 (D.C. Cir. 2003).

Under Apprendi v. New Jersey, the jury, not the court,

must find any facts “that increase the prescribed range of

penalties to which a criminal defendant is exposed.” 530 U.S.

466, 490 (2000) (internal quotation marks omitted). Such

facts include drug quantity under 21 U.S.C. § 841(b)(1),

which provides different mandatory sentence ranges based on

the quantity of drugs involved. United States v. Fields, 242

F.3d 393, 395 (D.C. Cir. 2001). Under section 841(b)(1)(A),

possession of fifty grams or more of cocaine base carries a

penalty range of ten years to life; under section 841(b)(1)(B),

possession of five grams or more carries a range of five to

forty years; and under section 841(b)(1)(C), possession of any

amount carries a penalty of up to twenty years.

Mouling argues that because the court instructed the jury

only that it had to find beyond a reasonable doubt that he

possessed a “detectable amount” of cocaine base, Trial Tr. at

38 (Sept. 28, 2004), and omitted any reference to “50 grams

or more,” it should have sentenced him under subsection (C)

(detectable amount) rather than under subsection (A) (fifty

grams or more). The government points out that although the

jury instructions referred to only a “detectable amount,” the

verdict form included the necessary quantity. Therefore,

according to the government, by checking “guilty” on the

verdict form, the jury actually found that Mouling possessed

fifty grams or more, eliminating any Apprendi error. We

disagree.

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Including the quantity in the verdict form cannot cure the

omission from the jury instructions. We presume that juries

follow the instructions they are given, see Richardson v.

Marsh, 481 U.S. 200, 211 (1987), and here, the instructions

mentioned only a “detectable amount.” Properly following

instructions, the jury would have been required to find

Mouling guilty if it concluded that he possessed only a

detectable amount, regardless of what the verdict form said.

The court therefore committed error in sentencing Mouling

under subsection (A), and under Apprendi and Fields such

error was plain at the time of trial.

Moving on, then, to the remaining elements of the plain

error inquiry, we must consider whether the error affected

substantial rights and “seriously affect[ed] the fairness,

integrity or public reputation of judicial proceedings.” Olano,

507 U.S. at 732 (internal quotations omitted). In United

States v. Webb, the district court had improperly imposed a

sentence under subsection (A), but we nonetheless held that

this Apprendi error did not affect substantial rights because

the actual sentence, like Mouling’s, fell below the statutory

maximum available under subsection (C). 255 F.3d 890, 898

(D.C. Cir. 2001). Mouling argues that Webb no longer

controls because United States v. Booker, 543 U.S. 220

(2005), has made the sentencing guidelines advisory.

According to Mouling, under a mandatory guidelines regime,

there is no effect on substantial rights because the defendant

would have received the same sentence based on the

guidelines’ drug quantity table under either subsection (A) or

subsection (C), but this is no longer true under the advisory

guidelines. We needn’t decide whether Booker changes our

analysis under the plain error test’s third element, however,

because Mouling cannot show that his sentence meets the

test’s fourth element—that the error “seriously affects the

fairness, integrity or public reputation of judicial

13

proceedings,” Olano, 507 U.S. at 732 (internal quotation

marks omitted).

In Webb, we held that a sentence based on an Apprendi

error did not satisfy the plain error test’s fourth element when

the evidence of the higher, subsection (A) drug quantity was

overwhelming and uncontroverted. 255 F.3d at 901–02; see

also United States v. Cotton, 535 U.S. 625, 633–34 (2002) (no

plain error in failure to include drug quantity in indictment

where evidence was “overwhelming” and “essentially

uncontroverted”). Attempting to distinguish Webb, Mouling

(1) questions the strength of the evidence of drug quantity and

(2) suggests that the difference in color among the three

“cookies” found in the parka could create a reasonable doubt

that all three cookies contained cocaine base, which could

reduce the total weight to below the fifty-gram mark.

As to the first point, Mouling acknowledges that the

chemist’s report found a total weight of 51.7 grams, but

argues that the record contains no evidence as to the accuracy

of the chemist’s measurements and points out that those

measurements were contradicted by the government’s own

expert. He also emphasizes that 51.7 grams is close to the

fifty-gram breakpoint between subsection (A) and subsection

(B), rendering more significant any doubt as to the accuracy

of the weighing method. Mouling’s efforts to undermine the

strength of the evidence are unpersuasive. Although it is true

that the government never demonstrated the accuracy of the

chemist’s measurements, nothing in the record suggests that

the measurements were in any way inaccurate. And although

the government expert estimated that the baggies represented

“three half-ounce bags,” Trial Tr. at 61 (Sept. 23, 2004), this

estimate, far from contradicting the chemist’s measurements

(as Mouling suggests), was itself based on those

measurements. See Trial Tr. at 59 (Sept. 23, 2004) (expert

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testimony noting the measured weight of 51.7 grams and

concluding that each bag contained “approximately 17 grams

each, which is just slightly over a half an ounce on each

bag”). To be sure, this case involves quantities close to the

fifty-gram mark, but the amount of drugs recovered need not

vastly exceed the statutory amount for evidence of quantity to

be “overwhelming.” The government produced physical

evidence—the actual cookies themselves—and presented

laboratory analyses to establish quantity. “This was not a

case, for example, in which the government recovered a

quantity of drugs less than the 50-gram statutory threshold,

and thus had to rely on ‘vague testimonial’ rather than

physical evidence to prove that the threshold was met.”

United States v. Pettigrew, 346 F.3d 1139, 1147 (D.C. Cir.

2003) (quoting United States v. Fields, 251 F.3d 1041, 1045

(D.C. Cir. 2001)).

As to Mouling’s second point, despite his efforts on

appeal, the evidence of drug quantity, as in Webb, was

“essentially uncontroverted,” Cotton, 535 U.S. at 633. See

also Johnson, 331 F.3d at 969 (finding failure to submit drug

quantity to jury was not plain error when defendant “offered

the jurors no scenario under which they could have convicted

him of unlawful possession with intent to distribute cocaine

base, yet found that the quantity involved was less than 50

grams”). Neither Mouling’s trial counsel nor the lawyer who

represented him at sentencing questioned the validity of the

weight listed in the chemist’s report or in any other way

suggested that Mouling might actually have possessed less

than fifty grams. Nor does Mouling now give us any reason

to doubt the chemist’s measurements. For the first time,

Mouling suggests an alternative “fake cookie” theory, which

he contends could have created reasonable doubt as to the

total weight of cocaine base. Mouling suggests that because

the chemist tested samples from all three cookies mixed

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together, the test couldn’t determine whether each individual

cookie contained cocaine base. If only the two white cookies,

but not the cream-colored cookie, actually contained cocaine,

the total weight would have fallen within the range applicable

to subsection (B) (five grams or more) rather than exceeding

fifty grams under subsection (A). To be sure, we have

suggested that presenting on appeal a plausible scenario under

which a jury might have convicted the defendant but still

found he possessed less than the requisite quantity of drugs

could inform the analysis under the plain error test’s fourth

element. See Webb, 255 F.3d at 902. But Mouling presented

neither evidence nor argument at trial, sentencing, or on

appeal that the difference in cookie color on which his theory

depends is in fact linked to the presence or absence of

cocaine. Indeed, despite the color difference, the

government’s expert testified that the three cookies “appear[]

to be . . . crack cocaine.” Trial Tr. at 57 (Sept. 23, 2004).

Mouling’s unsubstantiated theory, presented for the first time

on appeal, is thus insufficient to seriously affect the fairness,

integrity, or public reputation of judicial proceedings.

Mouling makes an additional related argument: that the

same Apprendi error requires remand for resentencing on the

term of supervised release. In imposing a five-year term of

supervised release, the district court expressly tracked the

mandatory minimum under section 841(b)(1)(A). Section

841(b)(1)(C), under which Mouling should have been

sentenced, carries no mandatory minimum. In United States

v. Graham, we held on plain error review that this exact error

affected the defendant’s substantial rights, even though a five-

year term would have been permissible, albeit not mandatory,

under section 841(b)(1)(C). 317 F.3d 262, 273–75 (D.C. Cir.

2003). Although remanding for resentencing on the term of

supervised release, Graham apparently never considered the

plain error test’s fourth element, which as demonstrated

16

above, is fatal to Mouling’s Apprendi claim. Mouling’s

challenge to the supervised release term therefore fails for the

same reason as his challenge to the term of imprisonment.

Mouling next objects to the way in which the district

court considered his decision to proceed to trial rather than

accept a plea deal. Starting from the premise that the drug

charge carried a minimum of ten years and the firearm charge

a minimum of five years, the district court reasoned that

Mouling should receive a heftier sentence than the fifteen

years he would have received had he pled guilty. When the

government pointed out that it had actually offered Mouling a

substantially lower sentence, the district court declined to

inquire into the details of the actual deal, stating, “Well, of

course, the court doesn’t get in the middle of the plea

negotiation process.” Sent’g Tr. at 10 (Oct. 31, 2005).

Although the district court declined to consider the actual

plea deal the government originally offered, Mouling has

given us no basis for concluding that the court acted

unreasonably in focusing instead on the sentence Mouling

would have gotten had he pled guilty to all charges for which

he was eventually convicted. We read the district court

merely to have recognized that a fifteen-year sentence would

have been at the low end of the guidelines range Mouling

would have received had he been eligible for the acceptance

of responsibility adjustment and to have denied Mouling the

benefit of that adjustment. The district court’s decision to

impose a within-guidelines sentence absent acceptance of

responsibility was reasonable. Although the district court

wouldn’t have erred had it considered the actual plea deal, it

was not required to do so, nor did it base the sentence on any

clearly erroneous factual findings. Given that the district

court correctly calculated Mouling’s guidelines range, treated

the guidelines as advisory, considered the required 18 U.S.C.

17

§ 3553(a) factors, and explained its reasoning adequately to

permit appellate review, it committed no procedural error.

See Gall v. United States, 128 S. Ct. 586, 597–98 (2007).

Finally, Mouling urges us to remand for resentencing in

light of Kimbrough v. United States, which confirms that

under the advisory guidelines, a district court may sentence

below the applicable guidelines range in order to account for

the sentencing disparity between powder and crack cocaine,

128 U.S. 558, 575 (2007). At sentencing, Mouling’s counsel

urged the court to consider this disparity and reduce

Mouling’s sentence accordingly. Given the district court’s

failure to expressly address this point, Mouling thinks that the

court may have misunderstood its authority to consider the

disparity and that remand is necessary to allow the court to do

so now.

We generally remand for reconsideration only upon some

record showing that the district court misunderstood its

sentencing authority. See United States v. Godines, 433 F.3d

68, 70 (D.C. Cir. 2006) (refusing to remand where nothing in

the record rebutted “the presumption ‘that the district court

knew and applied the law correctly.’” (quoting United States

v. Ayers, 428 F.3d 312, 315 (D.C. Cir. 2005))). Here,

Mouling’s counsel strenuously argued that the court should

consider the crack-powder disparity. Although the

government insisted that the court lacked authority to do so,

the record contains no indication that the district court agreed

with the government or otherwise misapprehended its

authority. To the contrary, the court repeatedly noted the

advisory nature of the guidelines. Although Mouling now

argues that a presumption that the district court knew and

applied the law correctly is unjustified where, as here, the

court was silent as to its view on the matter and the law is

“completely up in the air,” Appellant’s Reply Br. 20, Mouling

18

concedes that at the time of sentencing in this case some

district courts were permissibly considering the disparity.

The law therefore was hardly so inscrutable that a district

court, particularly one that clearly understood the advisory

nature of the guidelines, could not be presumed to follow it

correctly. Remand on this ground is therefore unwarranted.

IV.

This brings us finally to Mouling’s ineffective assistance

of counsel claim. For Mouling to succeed, he “must show

two things: that his lawyer made errors ‘so serious that

counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment,’ and that counsel’s

deficient performance was prejudicial, i.e., that there is a

‘reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different.’” United States v. Gaviria, 116 F.3d 1498, 1512

(D.C. Cir. 1997) (citation omitted) (quoting Strickland v.

Washington, 466 U.S. 668, 687, 694 (1984)).

In this circuit, when an appellant makes an ineffective

assistance of counsel claim for the first time on appeal, we

generally remand for “a fact-finding hearing, at which the

district court can explore ‘whether alleged episodes of

substandard representation reflect the trial counsel’s informed

tactical choice or a decision undertaken out of ignorance of

the relevant law.’” United States v. Fennell, 53 F.3d 1296,

1303 (D.C. Cir. 1995) (quoting United States v. Cyrus, 890

F.2d 1245, 1247 (D.C. Cir. 1989)), modified on reh’g, 77 F.3d

510 (D.C. Cir. 1996). We have recognized two exceptions to

this general practice: “when the trial record alone

conclusively shows that the defendant is entitled to no relief,”

and the “rare exception when the trial record conclusively

shows the contrary.” Fennell, 53 F.3d at 1303–04.

19

Mouling makes six arguments in support of his

ineffective assistance of counsel claim: that defense counsel

(1) failed to advise him of the government’s offer of a five-

year sentence in exchange for a guilty plea; (2) failed to

object to the compound questions at voir dire; (3)

unnecessarily introduced a police report containing prejudicial

hearsay and failed to call two defense witnesses who would

have testified about the identity of the hit-and-run suspect; (4)

misled him into believing that he was bound by his earlier

decision not to testify; (5) failed to renew the motion for

judgment of acquittal despite the insufficient evidence of drug

quantity; and (6) failed to make adequate inquiries into

whether jury deliberations were affected by a juror who asked

to be excused due to her belief that she observed defense

counsel improperly communicating with a witness.

We need look no further than Mouling’s first

allegation—that his counsel failed to advise him of the

government’s plea offer—to agree that remand is necessary.

In United States v. Gaviria, we remanded for an evidentiary

hearing when defense counsel gave the defendant incorrect

information about the length of sentence offered by the

government in exchange for a guilty plea. 116 F.3d at 1512,

1514. We indicated that the hearing should address whether

the defendant “would have taken the Government’s plea offer

had he known of his true [sentencing] exposure.” Id. at 1514.

Similarly, Mouling claims that his counsel informed him only

of a fifteen-year plea offer, although the government had also

offered a five-year deal. The government argues that Mouling

cannot have been prejudiced by counsel’s failure to inform

him of the deal because he learned of the plea offer when the

prosecutor mentioned it on the record in his presence. But the

prosecutor’s on-the-record reference to the offer identified

only the statutory provision to which the government would

have allowed Mouling to plead, not the sentencing exposure

20

that would have flowed from such a plea. As in Gaviria,

then, an evidentiary hearing is needed to evaluate whether

Mouling knew the details of the plea offer and whether there

was a reasonable probability that he would have accepted the

offer had counsel properly informed him of it.

Given that we must remand for an evidentiary hearing on

this claim, we shall also leave it to the district court to

consider Mouling’s other ineffective-assistance allegations in

the first instance.

V.

While otherwise rejecting Mouling’s challenges, we

remand to the district court for an evidentiary hearing on his

ineffective assistance of counsel claims.

So ordered.