United States v. Melvin Knight

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 17, 2020 Decided December 8, 2020

No. 19-3016

UNITED STATES OF AMERICA,

APPELLEE

v.

MELVIN KNIGHT,

APPELLANT

Consolidated with 19-3017

Appeals from the United States District Court

for the District of Columbia

(No. 1:13-cr-00131-2)

(No. 1:13-cr-00131-1)

Howard B. Katzoff, appointed by the court, argued the

cause for appellant. With him on the briefs was Mary E. Davis,

appointed by the court.

Bryan H. Han, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Jessie K. Liu, U.S.

Attorney, and Elizabeth Trosman, John P. Mannarino, and

Pamela S. Satterfield, Assistant U.S. Attorneys.

2

Before: ROGERS, WILKINS, and KATSAS, Circuit Judges. *

Opinion for the Court by Circuit Judge ROGERS.

Opinion dissenting in part by Circuit Judge KATSAS.

ROGERS, Circuit Judge: In 2013, Melvin Knight and

Aaron Thorpe were arrested for armed robbery and kidnapping.

They were charged by the U.S. Attorney’s Office in the D.C.

Superior Court and offered a generous plea deal by the

Assistant U.S. Attorney: plead guilty to a single count of

assault with a dangerous weapon and no further charges

stemming from these crimes would be filed. Under the D.C.

Superior Court Sentencing Guidelines, the likely sentences

would be between two and six years for each defendant. The

plea offer was wired, however, so both Knight and Thorpe had

to accept it or it would be withdrawn. Thorpe wanted to accept

the plea offer, but Knight, who was erroneously advised by his

counsel that the offer came with ten years in prison and never

advised by his counsel of the sentencing consequences of

rejecting plea the offer, did not. Once they declined the plea

offer, the government dismissed the Superior Court charges

and prosecuted Knight and Thorpe on a ten-count indictment

in federal court. A jury found Knight and Thorpe guilty on all

counts, and the U.S. district court sentenced Knight to more

than 22 years’ imprisonment and Thorpe to 25 years’

imprisonment.

*

Senior Judge Stephen F. Williams was a member of the panel

at the time the case was argued and he participated in its

consideration before his death on August 7, 2020. Judge

Wilkins was randomly selected thereafter to serve as a member

of this panel.

3

On direct appeal, Knight and Thorpe both argued that they

had been denied effective assistance of counsel in violation of

the Sixth Amendment to the U.S. Constitution. This court,

concluding that their claims were “colorable,” United States v.

Knight, 824 F.3d 1105, 1113 (D.C. Cir. 2016), remanded the

case. Following an evidentiary hearing after remand, the

district court denied relief. Although agreeing that Knight’s

counsel’s performance was deficient, the court determined that

Knight had suffered no prejudice. The court rejected Thorpe’s

claim that his counsel was deficient and did not address

prejudice. Knight and Thorpe appeal.

For the following reasons, we reverse in part. Knight

satisfied his burden under both prongs of the standard for an

ineffective assistance of counsel claim. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). First, as the

government acknowledges, the performance by Knight’s

counsel did not meet minimal professional standards. Second,

the district court’s determination that Knight suffered no

prejudice rested on subsidiary factual findings that ignored the

direct effect of his counsel’s deficient performance on Knight’s

ability to intelligently assess his options and therefore were

clearly erroneous. Viewed properly, the contemporaneous

evidence and Knight’s testimony at the evidentiary hearing

sufficed to establish a reasonable probability Knight would

have accepted the plea offer but for his counsel’s ineffective

assistance. In contrast, we agree that Thorpe’s counsel was not

ineffective and there was no violation of his Sixth Amendment

rights. Accordingly, we affirm as to Thorpe and reverse the

denial of Knight’s Sixth Amendment challenge, remanding his

case to the district court to provide a remedy consistent with

this opinion.

4

I.

In January 2013, Knight and Thorpe were involved in an

armed robbery and kidnapping of Edmund Peters. They were

arrested and each was charged with one count of armed

kidnapping in the D.C. Superior Court and appointed separate

counsel. Shortly after their arrest, the Assistant U.S. Attorney

assigned to their cases sent an email to their counsel: If Knight

and Thorpe would plead guilty to one count of assault with a

dangerous weapon (“ADW”), then the government would

agree not to bring additional and more serious charges,

including two counts of armed kidnapping; two counts of

possession of a firearm during a crime of violence; two counts

of obstruction of justice; a second count of assault with a

dangerous weapon, namely assault with a firearm; and one

count of felon in possession of a firearm. The plea offer was

wired, however, allowing the government to dispose of the

charges against both defendants without a trial while

preserving its right to prosecution by trial if both did not accept

the plea offer, which would be withdrawn. In addition, the plea

offer was contingent on Knight and Thorpe also agreeing “[n]ot

to seek to modify the conditions of their release pending the

plea,” meaning that they could not be released from custody

before entering the plea. Id.

Knight’s counsel visited Knight in jail but did not mention

the plea offer. The next day, February 1, 2013, the Assistant

U.S. Attorney placed the plea offer on the record and the

Superior Court judge continued the preliminary hearing until

February 19, 2013, to give Knight and Thorpe time to consider

whether to accept the plea offer. In fact, Knight’s counsel’s

lone interaction with Knight about the plea offer was limited to

misinformation. While still in court, Knight asked how much

time the government wanted him to serve for the ADW charge,

and Knight’s counsel told him “[t]en years.” Hearing Tr. 19

5

(May 24, 2017). Ten years was the statutory maximum for

ADW, but the offense had no mandatory minimum and the

sentencing range under the Superior Court Sentencing

Guidelines was 24–72 months (2 to 6 years). Although counsel

told Knight he would visit him in jail to discuss the plea offer

further, he never did. Consequently, the brief and misleading

exchange in open court was the extent of the advice that Knight

received from counsel about the plea offer. Among other

things relevant to the plea offer, Knight was never advised of

the worst-case scenario were he to reject the plea offer, namely

being indicted on additional charges with a greatly increased

sentencing exposure in federal court.

Thorpe’s counsel, by contrast, advised his client of the plea

offer immediately upon learning of it, prior to the appearance

in the Superior Court for the scheduled preliminary hearing.

Counsel also visited Thorpe in jail to discuss the terms of the

plea offer. Their discussion covered the estimated sentencing

range for the ADW charge; potential additional charges that

Thorpe would face if he rejected the plea offer and the

sentencing consequences; and the fact that the plea offer was

wired. Thorpe’s counsel also alerted his client to the fact that

he had learned from Knight’s counsel, as the result of a chance

meeting in the Superior Court, that Knight was not expected to

take the plea. He told Thorp that the trial prosecutor had

refused to unwire the plea so Thorpe could plead separately.

At the February 19 preliminary hearing, Thorpe’s counsel

stated Knight and Thorpe did not intend to accept the plea offer.

The U.S. Attorney’s Office withdrew the plea offer and a trial

date was set. Prior to trial, the Superior Court charges were

dismissed and a federal grand jury returned a ten-count

indictment charging both Knight and Thorpe with six D.C.

Code felony offenses and the federal offense of being a felon

in possession of a firearm. A jury found them guilty as

6

charged, and the district court sentenced Knight to 268 months’

imprisonment (22 years and 4 months) and Thorpe to 300

months’ imprisonment (25 years).

On direct appeal from their convictions, Knight and

Thorpe contended, in part, that each had received ineffective

assistance of counsel in the Superior Court regarding the plea

offer. See Knight, 824 F.3d at 1109. This court determined

that “Knight’s and Thorpe’s claims of ineffective assistance are

colorable” and remanded them to the district court. Id. at 1113.

After a three-day evidentiary hearing, at which Knight and

Thorpe and their counsel testified, the district court denied

relief. Although determining that Knight’s counsel had

performed deficiently, the court concluded that Knight had not

been prejudiced. The court noted the lack of contemporaneous

evidence that Knight would have accepted the plea offer in

view of evidence that Knight (1) was focused on obtaining

pretrial release so that he could be with his wife for the birth of

their child, which would not have been possible if he accepted

the plea offer; (2) had told counsel he wanted to go to trial as

he was hopeful that the victim of the crimes would not testify

against him; and (3) had rejected a plea offer on the federal

charges. The court also determined that Thorpe’s counsel’s

performance was not deficient, rejecting the argument that a

wired plea offer required his counsel to meet with Knight’s

counsel to discuss the plea offer. The court did not address the

issue of prejudice to Thorpe.

Knight and Thorpe appeal, and the court’s review of the

district court’s denial of their ineffective assistance of counsel

claims is de novo. United States v. Abney, 812 F.3d 1079,

1086–87 (D.C. Cir. 2016). The district court’s subsidiary

factual findings are reviewed for clear error. See id. at 1087.

7

II.

“The Sixth Amendment guarantees a defendant the

effective assistance of counsel at ‘critical stages of a criminal

proceeding,’ including when he enters a guilty plea.” Lee v.

United States, 137 S. Ct. 1958, 1964 (2017) (quoting Lafler v.

Cooper, 566 U.S. 156, 165 (2012)). To succeed on a claim of

ineffective assistance of counsel, a defendant must show that

(1) his counsel’s performance was deficient, as judged against

prevailing professional norms under the circumstances, and

(2) the deficient performance was prejudicial. See Strickland,

466 U.S. at 687. To satisfy the prejudice prong, the defendant

must show that there is a reasonable likelihood that the

outcome would have been different had the defendant been

adequately counselled. See Missouri v. Frye, 566 U.S. 134,

147 (2012).

More specifically, where a defendant maintains that his

counsel’s inadequate assistance caused him to proceed to trial

when he would otherwise have accepted a plea offer, prejudice

means that “but for the ineffective advice of counsel there is a

reasonable probability that . . . the defendant would have

accepted the plea and the prosecution would not have

withdrawn it . . . , that the court would have accepted its terms,

and that the conviction or sentence, or both, under the offer’s

terms would have been less severe than under the judgment and

sentence that in fact were imposed.” Lafler, 566 U.S. at 164.

A criminal defendant alleging ineffective assistance of counsel

generally may not rely solely on post hoc testimony to show

that he would have accepted the plea offer if he had been

properly advised. Cf. Lee, 137 S. Ct. at 1967; United States v.

Aguiar, 894 F.3d 351, 361–62 (D.C. Cir. 2018). At least where

a defendant has pled guilty and is seeking to show a reasonable

probability that he would have gone to trial but for counsel’s

ineffectiveness, the Supreme Court has instructed that

8

“[j]udges should . . . look to contemporaneous evidence to

substantiate a defendant’s expressed preferences.” Lee, 137

S. Ct. at 1967. Knight and Thorpe do not suggest that this

principle is inapplicable in their circumstances. Nonetheless,

although contemporaneous evidence of the defendant’s

preferences may inform the prejudice inquiry, a defendant is

not required to have hypothesized, at the time of the plea offer,

that his attorney might be providing inadequate assistance and

state that his decision whether or not to accept a plea offer

would change if that were so. Aguiar, 894 F.3d at 362.

Further, when a plea offer is wired, a defendant attempting

to show prejudice “must establish not only that he would have

taken the plea offer if his counsel had advised him correctly,

but also either that each of his co-defendants would have

accepted their respective plea offers, or that the Government

would have offered [him] an unwired plea.” United States v.

Gaviria, 116 F.3d 1498, 1512 (D.C. Cir. 1997).

A.

The government does not dispute that Knight’s counsel’s

performance was constitutionally deficient for failing to

correctly inform him of the time he would serve for ADW if he

accepted the plea offer. See United States v. Soto, 132 F.3d 56,

59 (D.C. Cir. 1997). Neither does the government dispute that

counsel’s performance was constitutionally deficient for

failing to advise Knight of the worst-case scenario of declining

the plea offer. See Aguiar, 894 F.3d at 361. Nor does the

government dispute that Knight’s co-defendant would have

accepted the wired plea offer had his acceptance not been

foreclosed by Knight’s rejection of the offer. Rather, the

government disputes Knight’s contention that he was

prejudiced by his counsel’s deficient performance. In the

government’s view, Knight has not established Strickland

9

prejudice because he has presented no contemporaneous

evidence to show a reasonable probability that he would have

accepted the plea offer absent counsel’s errors and, in fact, the

contemporaneous evidence that did exist indicated Knight

would not have accepted the plea even if adequately

counselled.

But the government, like the district court, overlooks the

direct negative impact that counsel’s shortcomings had on

Knight’s understanding of his circumstances at the time he was

deciding whether to accept the plea offer. Counsel’s inaccurate

appraisal of pleading to ADW and failure to alert Knight to the

worst-case scenario of rejecting the plea offer left Knight

unable to make an intelligent decision about whether to accept

the plea offer. Knight’s statements and his preferences at the

time he rejected the plea offer must be evaluated in view of his

erroneous understanding of his circumstances. Further, the

government, like the district court, ignores key

contemporaneous evidence suggesting Knight may have

accepted the plea offer had his counsel performed adequately.

For these reasons, the district court’s factual findings

underlying its determination that Knight suffered no prejudice

are clearly erroneous.

First, the Superior Court plea offer was contemporaneous

evidence of a plea offer whose generosity is self-evident from

the prosecutor’s email to Knight’s counsel and Thorpe’s

counsel. The email set forth the terms of the plea offer and the

consequences of its rejection, suggesting that Knight would

have accepted the offer had he understood how favorable it was

to him and how unfavorable his sentencing exposure would be

if he proceeded to trial. The limited exchange that Knight had

with counsel at the time of the Superior Court plea offer,

described below, also suggests that he might have been

amenable to accepting the plea offer even when he wrongly

10

believed it carried a ten-year sentence. Combined with

Knight’s after-the-fact testimony on remand about what he

would have done had he been correctly and adequately advised

by counsel regarding the plea offer, the contemporaneous

evidence before the district court suffices to show a reasonable

probability that he would have accepted the plea offer if he had

been advised of its leniency and the sentencing exposure he

would face as a consequence of rejecting it.

The generosity of the plea offer is underscored by the

significant disparity in sentencing exposure between the plea

offer on the Superior Court charge and the charges that Knight

faced in federal court. The Superior Court plea offer required

that Knight and Thorpe each plead guilty to only a single count

having no statutory minimum sentence, a ten-year maximum,

and a Superior Court Sentencing Guidelines range of two to six

years. By proceeding to trial Knight risked a ten-count

indictment in federal court, dramatically greater sentencing

exposure, and an actual imposed sentence of more than twenty-

two years. The prosecutor’s email to counsel forewarned of

these consequences yet Knight’s counsel never shared that

information with him. Even absent such forewarning, counsel

is obligated to advise a client facing criminal charges of what

the law, including sentencing guidelines, makes “clear” and is

“‘easily determined’ by competent counsel.” Aguiar, 894 F.3d

at 359 (quoting standard announced by Supreme Court in

Padilla v. Kentucky, 559 U.S. 356, 368–69 (2010)); see also

Padilla, 559 U.S. at 365, 370. Because Knight’s counsel did

not render adequate assistance on key considerations before

Knight, Knight was not in a position to appreciate the

generosity of the plea offer or realistically evaluate the

consequences of rejecting it. This significant sentencing

disparity is contemporaneous evidence that Knight would have

accepted the plea offer had counsel correctly apprised him of

how favorable it was and of the sentencing exposure he would

11

face if he declined the offer and went to trial. See Gaviria, 116

F.3d at 1513. Indeed, both the government and the district

court characterized the plea offer as “incredibly sweet.”

Hearing Tr. 50 (May 25, 2017).

Other circuits have recognized that a disparity in

sentencing exposure may suffice to show prejudice under the

second prong of Strickland. See United States v. Herrera, 412

F.3d 577, 581 (5th Cir. 2005); Griffin v. United States, 330 F.3d

733, 737–38 (6th Cir. 2003); United States v. Day, 969 F.2d 39,

45–46 (3d Cir. 1992). Although those decisions predate the

Supreme Court’s decision in Lee, the Supreme Court did

nothing to undermine the commonsense conclusion that a

disparity in sentencing exposure is relevant to the prejudice

inquiry. Indeed, even after Lee, our sister circuits have

continued to view a severe disparity between the plea offer and

sentence faced by proceeding to trial as compelling evidence

that the defendant would have accepted a plea offer but for

counsel’s constitutionally deficient performance. See, e.g.,

Dodson v. Ballard, 800 F. App’x 171, 181 (4th Cir. 2020);

Byrd v. Skipper, 940 F.3d 248, 259 (6th Cir. 2019). And it is

telling here, for purposes of establishing a reasonable

probability, that Knight’s similarly situated wired co-defendant

who was advised by his counsel of the generosity of the plea

offer and his potential sentencing exposure if he rejected it,

wanted to accept the plea offer. This, too, is contemporaneous

evidence that Knight would also have been inclined to accept

the offer had he not been misinformed and inadequately

informed about the plea offer and the enhanced sentencing

exposure he would face by going to trial and instead received

the assistance of counsel to which the Constitution entitled him.

While our dissenting colleague cites Lee for the proposition

that defendants often weigh differently the respective risks of

pleading and going to trial, Lee does not question that one co-

defendant’s willingness to accept a plea offer may tend to show

12

that another co-defendant would have taken the same plea

offer. The record shows that Knight and Thorpe’s criminal

history categories were only one level apart. See Govt’s Supp.

Sent. Mem. 2–3 (Nov. 8, 2013). That Thorpe may have

received a slightly higher sentence than Knight by going to trial

does not make Thorpe’s willingness to accept the plea offer

irrelevant to whether there is a reasonable probability that

Knight would have accepted the offer as well.

Other evidence contemporaneous to when the plea offer

was pending in the Superior Court indicates that Knight may

have been amenable to accepting the plea offer had he been

properly advised by counsel. Knight explained on remand at

the ineffective assistance hearing that when his counsel

informed him the government had extended a plea offer, his

first question was “how much time do[es] [the government]

want for that?” Hearing Tr. 19 (May 24, 2017). That question

suggests that his decision whether to accept the plea offer was

calibrated to the sentence that he would receive as a result of

pleading guilty. Knight’s circumstances do not otherwise

indicate that he was dead-set on going to trial no matter its risks

and consequences, and he may well have responded to the plea

offer differently had counsel correctly advised him of its

sentencing consequences. Instead, he made the decision to

reject a two-to-six-year sentence plea offer based on the

understanding that his sentence would be ten years.

The remainder of Knight’s contemporaneous exchange

with counsel further indicates a reasonable probability that

Knight would have accepted the plea offer had counsel

apprised him of the consequences of declining it. When

counsel told him that the guilty plea would require ten years’

imprisonment and Knight responded that he was “not copping

to that,” counsel interjected: “Well, just hold up, I’m going to

come over to the jail and talk to you.” Id. That statement

13

indicated there was more Knight should consider before

deciding whether to accept the plea offer. Knight’s reply,

“okay,” id., indicates that although his initial reaction upon

learning he would have to serve ten years in prison was to reject

the plea offer, he was amenable to further discussion and

possibly to changing his mind even under the mistaken

impression that he would face ten years if he pled guilty. Given

this exchange, had Knight’s counsel visited him in jail,

corrected his earlier erroneous advice, and adequately

counselled him on the sentencing exposure he faced if he

rejected the plea offer, there is a reasonable probability that

Knight would have changed his mind, especially given the

magnitude of the disparity in that exposure as compared to

accepting the government’s initial offer. After all, he was

expecting to have a child shortly enter his life and presumably

would not have preferred to be in prison during the entirety of

his child’s youth.

Despite this record evidence, the government insists that

the only evidence Knight would have accepted the plea offer

was his after-the-fact testimony at the ineffective assistance

hearing. In the government’s view, what contemporaneous

evidence did exist of Knight’s preferences at the time of the

plea offer suggests that he would not have accepted it because

Knight told counsel that he wanted to be released to attend his

child’s birth. Under the terms of the plea offer, he would not

have been able to be present. Also, the government notes,

Knight was hopeful that the victim of the crimes would not

testify against him at a trial.

Admittedly, these are considerations that would have

weighed in favor of Knight rejecting the plea offer and

proceeding to trial. Because one of the terms of that offer was

that he would be unable to seek to modify the conditions of his

presentence detention, accepting the offer would have meant

14

he would not have been able to obtain immediate release for

the birth of his child. And his reported optimism that a key

witness would not testify against him at trial might have

tempted him to take his chances in the hope of obtaining an

acquittal. Yet none of this evidence precludes there being a

reasonable probability that Knight, upon being properly

advised by counsel, including a realistic assessment of whether

a key government witness would not testify at trial, would have

accepted the generous plea offer. Knight was under the

erroneous impression that accepting the plea offer came with

ten years’ imprisonment, and counsel failed to advise him of

the worst-case scenario consequences of declining the plea

offer. Given that the Supreme Court has acknowledged that

“the possibility of even a highly improbable result may be

pertinent to the extent it would have affected [a defendant’s]

decisionmaking,” Lee, 137 S. Ct. at 1967, Knight’s

considerable misunderstanding of his circumstances, caused by

counsel’s omissions and misinformation, is relevant to whether

Knight would have accepted the plea offer but for counsel’s

ineffectiveness.

Furthermore, to the extent some evidence suggests that

Knight was not inclined to accept the Superior Court plea offer,

it is of limited value because it is infected by counsel’s deficient

performance. What the evidence shows is that under what he

mistakenly understood to be the circumstances, Knight, unlike

his co-defendant Thorpe, did not want to accept a generous plea

offer. Yet the record also shows that Knight’s understanding,

unlike his co-defendant’s, diverged significantly from his

actual situation. The priority that Knight placed on being

present at his child’s birth arose in the context of thinking the

plea offer required ten years’ imprisonment. His assessment of

what was in his best interests could well have changed had he

been correctly advised of the consequences of accepting and of

rejecting the plea offer. Given the severity of the charges that

15

Knight faced, along with the fact that his alleged commission

of the offense while using a firearm and on supervised release

for a prior federal drug conviction weighed in favor of

detention, the prospect that he would be able to obtain pretrial

release was likely illusory, as adequate counsel could have

discussed with him. See, e.g., United States v. Smith, 79 F.3d

1208, 1210–11 (D.C. Cir. 1996); United States v. Peralta,

849 F.2d 625, 626 (D.C. Cir. 1988). So too, given the

government’s interest in having Peters’ testimony as the victim

of the crimes, was Knight’s speculation that Peters would not

testify against him at trial. Had Knight received proper advice

from his counsel at the time of the plea offer, he would have

learned these were unlikely prospects.

In short, that Knight was focused on obtaining release says

little about what he would have done had he been adequately

advised of the consequences of declining the plea offer. In

analyzing whether a defendant had suffered prejudice from his

attorney’s failure to inform him of his sentencing exposure if

he declined the government’s plea offer, this court has aptly

observed: “[T]he choices that [the defendant] actually made do

not necessarily shed any useful light on the choices that he

would have made if he had been properly advised.” United

States v. Thompson, 27 F.3d 671, 677 (D.C. Cir. 1994). The

same is true here.

Nor does the absence of unequivocal contemporaneous

evidence that Knight affirmatively wanted a plea deal mean

that he cannot show a reasonable probability that he would

have accepted the plea offer if he had been provided the

effective assistance of counsel. As this court explained, “[t]he

Supreme Court did not suggest in Lee that a defendant must

hypothesize his counsel’s advice might be erroneous and state

contemporaneously that his plea decision would differ if that

were so.” Aguiar, 894 F.3d at 362 (discussing Lee, 137 S. Ct.

16

at 1967–68). Here, as in Aguiar, “[t]he gravamen of [Knight’s]

claim is that because of [his] counsel’s deficiency, he had no

reason to suspect he needed to make such a statement, and thus

did not know the full consequences of his decision to reject the

plea.” Id. At the time of the Superior Court plea offer, with

the misinformation and insufficient information he had

received, Knight could not intelligently assess whether to

accept the offer. To meet his burden, Knight was not required

to show either that he wanted to accept the plea offer but was

dissuaded by counsel, or that he certainly would have accepted

the offer but for counsel’s ineffectiveness. Instead, he needed

to show only that there was a reasonable probability that he

would have accepted the plea offer were it not for his counsel’s

inadequate assistance.

The government also maintains that Knight’s subsequent

rejection of a plea offer in his federal case shows that he was

not amenable to any kind of plea deal and thus would not have

accepted the Superior Court plea offer even if properly advised

by counsel. It is debatable whether this evidence is

contemporaneous because the government made the federal

court plea offer six months after Knight and Thorpe rejected

the Superior Court plea offer. At most it sheds only limited

light on whether Knight would have accepted the Superior

Court plea offer had his counsel provided proper assistance

because the plea offer on the federal charges was considerably

less attractive. In federal court, Knight would have been

required to plead guilty to three counts carrying a mandatory

minimum sentence of five years and a cumulative maximum

sentence of 45 years. The Superior Court plea offer required

Knight to plead guilty to a single count that carried no

mandatory minimum and a ten-year maximum sentence, with

a Sentencing Guidelines range of two to six years. The

government, therefore, puts too much weight on his rejection

of the federal plea in arguing that because Knight declined this

17

plea offer, he would not have accepted any plea offer.

Moreover, Thorpe’s willingness to accept the plea offer in

Superior Court counsels against reading too much into

Knight’s rejection of the subsequent plea offer in his federal

case, for Thorpe also rejected the federal court offer. That

Thorpe did so, and that he would have accepted the Superior

Court offer, suggests that Knight might have had good reason

for rejecting the federal court offer regardless of whether he

would have accepted the Superior Court offer had he been

properly advised by his counsel.

In sum, it is undisputed by the district court and the

government that Knight’s counsel’s performance was

deficient. Those deficiencies distorted Knight’s understanding

of his circumstances, rendering it impossible for him to make

an intelligent decision about whether to accept a generous plea

offer. Consequently, a proper evaluation of the evidence of

Knight’s interests and desires to go to trial and to be present at

the birth of his child required the district court to consider the

effect of his counsel’s failings. The evidence before the district

court sufficed to establish a reasonably probability that Knight,

like Thorpe, would have accepted the plea offer. Because the

district court’s subsidiary findings regarding Knight’s desire to

be at his child’s birth and to go to trial failed to account for the

direct impact of his counsel’s deficient performance, those

findings, to the extent they were the basis for the district court’s

determination that Knight failed to show prejudice, are clearly

erroneous. And because the government has never suggested

that it would have rescinded the offer, or that the Superior

Court would not have accepted the offer, those arguments are

forfeited. See Carducci v. Regan, 714 F.3d 171, 177 (D.C. Cir.

1983). Upon review of the prejudice determination, we

therefore reverse the district court’s denial of Knight’s

Strickland claim.

18

B.

In contrast, we agree with the district court that Thorpe did

not receive ineffective assistance of counsel. Unlike Knight’s

counsel, Thorpe’s counsel met with his client at least twice in

jail prior to the February 19 preliminary hearing to discuss the

plea offer. During these conversations, Thorpe’s counsel

provided Thorpe with all of the information necessary to make

an intelligent decision whether or not to accept the plea offer,

including the sentencing range for the ADW charge, the wired

nature of the plea offer, and the possibility of federal charges

with substantially greater sentencing exposure if he rejected the

plea offer. Further, Thorpe’s counsel informed Thorpe that he

had learned from Knight’s counsel that Knight was unlikely to

accept the plea offer. And, consistent with the practice of the

D.C. Public Defenders Service where we worked, Thorpe’s

counsel asked the government to unwire the plea offer. Thus,

because this conduct “falls within the wide range of reasonable

professional assistance,” Strickland, 466 U.S. at 689, Thorpe

did not receive constitutionally deficient performance from his

counsel. It follows that Thorpe cannot establish a violation of

his Sixth Amendment rights.

III.

“Sixth Amendment remedies should be ‘tailored to the

injury suffered from the constitutional violation and should not

unnecessarily infringe on competing interests,’” Lafler, 566

U.S. at 170 (quoting United States v. Morrison, 449 U.S. 361,

364 (1981)), and there is considerable discretion to fashion

such a remedy, see id. at 171. Although the remedy for a Sixth

Amendment violation should not “grant a windfall to the

defendant or needlessly squander the considerable resources

the State properly invested in the criminal prosecution,” it

“must ‘neutralize the taint’ of [the] constitutional violation.”

19

Id. at 170 (quoting Morrison, 449 U.S. at 365). When a Sixth

Amendment deprivation causes a defendant to reject “an offer

. . . for a guilty plea to a count or counts less serious than the

ones for which [he] was convicted” at trial, “resentencing alone

[based on the convictions at trial] will not be full redress for the

constitutional injury.” Id. at 171. “In these circumstances, the

proper exercise of discretion to remedy the constitutional injury

may be to require the prosecution to reoffer the plea proposal.”

Id.

This is such a case, for the appropriate remedy calls upon

the government to reoffer the original plea deal to Knight.

While the district court has some discretion to accept or reject

the plea, see Lafler, 566 U.S. at 172, the Supreme Court in

Lafler declined to define the boundaries of that discretion, id.,

and so do we here. But we do note that there is nothing in

Lafler to indicate that the breadth of the district court’s

discretion is as great as our dissenting colleague suggests. See

Dis. Op. at 14–15. Rather, the Court in Lafler indicated that

the trial court’s discretion derives from the court rule governing

its acceptance or rejection of plea agreements. 566 U.S. at 174

(citing Mich. Ct. Rule 6.302(C)(3) (2011)). Here, that rule is

Rule 11 of the Federal Rules of Criminal Procedure, under

which “a district court lacks authority to reject a proposed

agreement based on mere disagreement with a prosecutor’s

underlying charging decisions.” United States v. Fokker Servs.

B.V., 818 F.3d 733, 745 (D.C. Cir. 2016) (citing United States

v. Ammidown, 497 F.2d 615, 622 (D.C. Cir. 1973)). And Lafler

certainly did not indicate that the impossibility of restoring to

the government the costs of trying a defendant is grounds alone

to deny that defendant any remedy for the violation of his Sixth

Amendment rights. Indeed, such a rule would threaten to

render the remedy articulated in Lafler a nullity because in

virtually every Lafler-type case the government expends

significant resources at trial as a result of the defendant’s

20

counsel’s incompetent performance. To the contrary, the Court

in Lafler, 556 U.S. at 172, noted that in fashioning its remedy

the trial court should “find[] a remedy that does not require the

prosecution to incur the expense of conducting a new trial,”

even though “[t]he time continuum makes it difficult to restore

the [parties] to the precise positions they [previously]

occupied.” In doing so, the trial court “must weigh various

factors,” id. at 171, and may “consult” the respective positions

occupied by the defendant and prosecution before the rejection

of the plea as a “baseline,” id. at 172. Nor would enforcement

of the plea agreement on remand “dramatically” benefit Knight

to the detriment of the government, Dis. Op. at 15, for although

the government incurred the expense of proceeding to trial as a

result of Knight’s counsel’s ineffective assistance, that must be

balanced against the fact that Knight’s term of imprisonment

has already exceeded the upper bound of the Superior Court

Sentencing Guidelines range for the ADW charge set forth in

the plea offer.

According to Thorpe, even if his counsel was not deficient,

the government must nonetheless reoffer the plea to both

defendants, essentially because the generous plea offer in the

Superior Court was wired. As Thorpe sees it, despite receiving

constitutionally adequate counsel, he has suffered a Sixth

Amendment injury “identical” to Knight because the

ineffective assistance of Knight’s counsel prevented him from

obtaining the benefits of the plea offer. Reply Br. 18. But

although Thorpe expressed his desire to accept the plea offer

from the outset, he knew that the plea offer was conditioned on

both defendants accepting it. Thorpe’s ability to accept the

wired plea offer was thwarted by Knight’s uninformed decision

to reject it. He was also thwarted by the government’s refusal

to unwire the defendants so he could accept the plea offer. Both

defendants were convicted by a jury in federal court, and their

convictions were affirmed on direct appeal, save for the remand

21

on their ineffective assistance of counsel claims. In these

circumstances, where Thorpe’s Sixth Amendment rights were

not violated, the court is unaware of any precedent granting

relief to one defendant because a co-defendant received the

ineffective assistance of counsel. Nor does it seem appropriate

to order the government to reoffer a wired plea in order to

restore Knight to his original position because were this a

different case and Knight’s co-defendant had been acquitted at

trial, he would certainly refuse to accept the reissued wired

plea, and Knight’s constitutional injury would not be remedied

at all.

The appropriate remedy for a defendant who received a

wired plea offer but was prevented from taking it solely by his

counsel’s ineffectiveness is simply to order the government to

extend the offer to that defendant again, without regard to

whether his co-defendant would be presently willing to accept

the offer. Although this court cannot order that it do so, the

government has the discretion to ameliorate any injustice that

would result from permitting the inadequately counseled

defendant to accept the original plea offer but not the co-

defendant whose counsel’s performance was adequate. Even

now, the prosecution may seek dismissal of some or all of the

charges against Thorpe under Rule 48(a) of the Federal Rules

of Criminal Procedure. See, e.g., Rinaldi v. United States, 434

U.S. 22 (1977).

IV.

Our dissenting colleague would resolve this appeal by

creating a novel legal framework making it more difficult than

current law requires for a defendant to prove the denial of the

constitutional right to the effective assistance of counsel. This

is accomplished mostly by three means: misreading Supreme

Court precedent, creating new law out of whole cloth contrary

22

to precedent, and ignoring on-point precedent of this court.

These deviations from the applicable law render useless the

usual comparative analysis between the opinion of the court

and the dissent but do not obviate the need to respond.

First, our dissenting colleague states that Lee “strongly

suggests” that the court’s prejudice analysis may not take

account of the generosity of the plea deal in its prejudice

analysis, Dis. Op. at 4. Nothing in Lee implies that disparity in

sentencing exposure can never qualify as contemporaneous

evidence. In Lee, 137 S. Ct. at 1963, the defendant pled guilty

to a charge that, unbeknownst to him because of his counsel’s

ineffective assistance, would result in his mandatory

deportation. There was “no question” that deportation was the

paramount consideration for Lee in deciding whether to plead

guilty. Id. at 1967. He sought to vacate the plea and proceed

to trial, even though he had “no viable defense” to the charge,

faced near-certain conviction by a jury, and would thereafter

face deportation on top of a likely longer prison sentence. See

id. at 1966–67. In deciding whether to accept the plea offer

had he been properly advised, Lee therefore would have faced

a choice between “certainly” being deported if he pled guilty

and “[a]lmost certainly” being deported if he went to trial. Id.

at 1968. Thus, as to the “determinative issue” in Lee’s decision

whether to accept the plea offer, id., there was barely any

disparity at all — only the small difference between certainty

and almost-certainty. In Lee, therefore, the Court had no

occasion to consider whether a disparity in outcomes between

accepting a plea offer and proceeding to trial could bear on the

Strickland prejudice analysis.

Second, contrary to our dissenting colleague, reliance on

testimony adduced at the evidentiary hearing does not run afoul

of Lee. See Dis. Op. at 6–7. At most, Lee, 137 S. Ct. at 1967,

proscribed courts from relying “solely” on “post hoc assertions

23

from a defendant about how he would have pleaded.” The

Supreme Court in Lee did not, however, impose a blanket ban

on considering testimony adduced at an evidentiary hearing

about temporally contemporaneous events. The Supreme

Court has observed that a trial record is “not developed

precisely for the object of litigating or preserving [an

ineffective assistance] claim and thus [is] often incomplete or

inadequate for this purpose.” Massaro v. United States, 538

U.S. 500, 504–05 (2003). As a result, in deciding an ineffective

assistance claim, the court “may take testimony from witnesses

for the defendant and the prosecution and from the counsel

alleged to have rendered the deficient performance.” Id. at 505.

Nor, as the dissent suggests, is such properly considered

testimony limited to the defendant’s production of a

contemporaneous “transcript, letter, or recording,” should he be

lucky enough to have one. Dis. Op. at 6. Such a test is nowhere

required or suggested or even hinted at in Lee, much less in

supporting authority. Id. Our dissenting colleague protests that

he has been misunderstood, noting he would not exclude plea

generosity evidence or evidence adduced at an evidentiary

hearing. Dis. Op. at 7 n.1. But this is to no avail for he still

views such not to be “contemporaneous evidence” as he defines

it and so insufficient to show prejudice.

Third, our dissenting colleague acknowledges that this

court reviews the district court’s prejudice decision de novo but

finds no clear error in the district court’s factual finding that

Knight offered no contemporaneous evidence, a subject that

this court also reviews de novo. Abney, 812 F.3d at 1087; see

also id. at 1093–94; United States v. Toms, 396 F.3d 427, 432

(D.C. Cir. 2005). Our colleague either ignores the evidence

before the district court (or belittles it as “snippets,” Dis. Op.

at 12), or redefines “contemporaneous evidence” as limited to

physical evidence or requires statements by a defendant at the

time that this court has held are not required. Dis. Op. at 6–7.

24

The flawed logic on which the district court proceeded, see

Thompson, 27 F.3d at 677, is highlighted when the dissent too

points to Knight’s refusal to enter a plea to the federal charges,

Dis. Op. at 10. In applying common sense in the government’s

favor, see id. at 13, while refusing to consider Knight’s actions

contextually, see id. at 11–12 — that is, in the context of his

ignorance of his circumstances as a result of his counsel’s

deficient advice — our colleague relies on generalizations that

can only be considered anecdotal absent record support.

Accordingly, we affirm the order denying Thorpe’s Sixth

Amendment challenge but reverse the denial of Knight’s Sixth

Amendment challenge and remand his case to the district court

to provide a remedy consistent with this opinion.

KATSAS, Circuit Judge, dissenting in part: After a jury

convicted him of serious crimes, Melvin Knight claimed that

bad legal advice had caused him to reject a favorable plea offer.

Following an evidentiary hearing on this claim, the district

court found no reasonable probability that Knight would have

accepted the plea offer had he received adequate advice. That

finding was not clearly erroneous, and it establishes that Knight

did not receive ineffective assistance of counsel.

I

On January 28, 2013, Knight and Aaron Thorpe violently

kidnapped Edmund Peters and Luttitia Fortune. Knight and

Thorpe assaulted their victims outdoors, fired a gunshot, forced

their way into Peters’s apartment, tied up the victims, and beat

Peters while attempting to steal his money and drugs. They

promised to kill Peters, and Thorpe placed the barrel of his gun

against Peters’s head. When police surrounded the apartment,

Knight and Thorpe untied the victims, concocted a story of

friendly sparring, and told the victims to play along. Peters

complied out of fear that Knight would further harm him.

Knight told Peters that he would not go to prison over the

kidnapping, which Peters took as another threat. The police

were not fooled.

Knight and Thorpe initially were charged with armed

kidnapping in D.C. Superior Court. On January 31, 2013, the

government offered Knight and Thorpe a wired plea deal—one

that required acceptance by both defendants. If each defendant

would plead guilty to one count of assault with a dangerous

weapon, the government would forgo various other, more

serious charges. While the offer was outstanding, Knight’s

counsel advised Knight that if he accepted the plea offer, he

would likely face ten years of imprisonment. In fact, ten years

was the statutory maximum for assault with a dangerous

weapon, while the recommended sentencing guideline range

would have been two to six years. Counsel also failed to advise

2

that Knight would face substantially greater exposure if he

rejected the plea offer and the government chose to pursue the

further charges. Knight rejected the offer, which prevented

Thorpe from accepting it.

The government dismissed the case in Superior Court and

obtained a federal indictment. Knight received a different

counsel for district court. Knight and Thorpe each was charged

with one count of possessing a firearm as a felon, two counts

of possessing a firearm during a crime of violence, two counts

of armed kidnapping, one count of armed burglary, one count

of assault with a dangerous weapon, one count of obstruction,

and one count of conspiracy. The jury convicted on all counts,

and Knight and Thorpe received prison sentences of 268 and

300 months, respectively. On direct review, we rejected

various challenges to the convictions and to Thorpe’s sentence,

but we remanded the case for factual development of claims

that each defendant’s counsel had provided ineffective

assistance during the plea negotiations in Superior Court.

United States v. Knight, 824 F.3d 1105 (D.C. Cir. 2016).

On remand, the district court held three days of evidentiary

hearings on the ineffective-assistance claims. Knight and

Thorpe testified at length, as did their respective Superior Court

counsel and a custodian of D.C. jail records. The court ordered

production of the initial plea offer, transcripts memorializing

the plea discussions in Superior Court and district court, and

other documents bearing on the contested representations.

Knight also introduced an ethics complaint that he had filed

against his Superior Court counsel.

After reviewing all this evidence, the district court rejected

the claims of both defendants. United States v. Thorpe, No. 13-

cr-131, 2019 WL 1117197 (D.D.C. Mar. 11, 2019). The court

found that Knight’s counsel performed deficiently in

3

connection with the plea offer, but it found no reasonable

probability that Knight would have accepted the offer had he

received adequate advice. Id. at *8–10. The court also found

that Thorpe’s counsel did not perform deficiently. Id. at *11.

II

The Sixth Amendment confers upon criminal defendants a

right “to have the Assistance of Counsel.” The Supreme Court

has held that “Assistance” means effective assistance.

Strickland v. Washington, 466 U.S. 668 (1984). To establish a

violation of this right, the defendant must prove both that his

counsel performed deficiently and that this caused prejudice.

Id. at 687. To prove prejudice, the defendant must show a

reasonable probability that the deficient performance changed

the result of the proceeding. See id. at 694. Thus, for claims

that deficient advice caused the defendant to reject a plea offer,

the defendant must show a reasonable probability that he would

have accepted the offer had he received adequate advice.

Lafler v. Cooper, 566 U.S. 156, 164 (2012).

This case turns on whether Knight established a reasonable

probability that he would have accepted the Superior Court

plea offer if he had received proper advice. For two reasons, I

would affirm the district court’s conclusion that Knight failed

to meet his burden of proof on this question.

A

In Lee v. United States, 137 S. Ct. 1958 (2017), the

Supreme Court imposed a high evidentiary hurdle for

defendants seeking to undo their plea decisions through claims

of ineffective assistance. The Court held that the defendant

must adduce evidence contemporaneous with the plea decision:

“Courts should not upset a plea solely because of post hoc

4

assertions from a defendant about how he would have pleaded

but for his attorney’s deficiencies. Judges should instead look

to contemporaneous evidence to substantiate a defendant’s

expressed preferences.” Id. at 1967. Although Lee involved a

defendant seeking to undo a prior plea acceptance, the Court’s

reasoning fully applies to defendants seeking to undo a prior

plea rejection. We have recognized that Lee applies in both

contexts. See, e.g., United States v. Aguiar, 894 F.3d 351, 361–

62 (D.C. Cir. 2018).

No contemporaneous evidence suggests that Knight would

have accepted the plea offer had he received proper advice. In

this Court, Knight’s current counsel acknowledged that the

contemporaneous evidence was “nearly useless” to show

prejudice. Oral Arg. at 4:45. Yet my colleagues invoke two

categories of evidence that they say are both contemporaneous

and weighty enough to show prejudice.

First, my colleagues reason that the “generosity” of the

Superior Court plea offer was itself contemporaneous evidence

of prejudice. Ante, at 9. But Lee strongly suggests otherwise.

There, the Supreme Court did not make its own abstract

assessment of how favorable the disputed plea was to the

defendant. Nor did the Court rest on the defendant’s

undisputed testimony, at a post-conviction hearing, that he

would have rejected the plea offer had he known that it would

lead to mandatory deportation. See 137 S. Ct. at 1967–68.

Instead, the Court insisted on corroborating evidence

“contemporaneous” with the plea itself—there, the defendant’s

specific statements during his plea colloquy that any risk of

deportation would have affected his plea decision. See id. at

1968. And the Court discounted objective evidence that the

accepted plea was favorable to the defendant given the very

high likelihood of a conviction. On that point, the Court

stressed that defendants assess trial risks differently, and even

5

a defendant “almost certain” to be convicted could rationally

reject a plea. Id. at 1968 (cleaned up).

Moreover, there are good reasons for insisting on

contemporaneous evidence beyond an assessment of how

generous a plea offer appears after-the-fact. Plea deals secure

important benefits for the government. They eliminate the time

and expense of developing and trying cases, which would

otherwise overwhelm a judicial system in which almost 98

percent of convictions are secured through guilty pleas. See

Statistical Tables for the Federal Judiciary, tbl. D-4 (2019).

They also eliminate the otherwise inescapable risk of outright

acquittals. It is hardly surprising that the government offers

significant benefits in return for guilty pleas—and, therefore,

that defendants who “take their case[s] to trial and lose receive

longer sentences” than those who plead guilty. Missouri v.

Frye, 566 U.S. 134, 144 (2012) (quotation marks omitted).

Perhaps this plea offer was unusually generous, but Knight has

not made that case. And if any large disparity in exposure

qualifies as contemporaneous evidence of prejudice, then we

have opened the floodgates, all but eliminating prejudice as an

independent element for Lafler claims. That is precisely the

opposite of what the Supreme Court sought to accomplish in

Lee, which stressed that “[s]urmounting Strickland’s high bar

is never an easy task,” 137 S. Ct. at 1967 (quotation marks

omitted), and which imposed a contemporaneous-evidence

requirement to keep it that way.

My colleagues cite out-of-circuit cases for the proposition

that a “disparity in sentencing exposure” may show prejudice.

Ante, at 11. But three of those cases were decided before Lee

established the requirement of contemporaneous corroborating

evidence. United States v. Herrera, 412 F.3d 577, 582 (5th Cir.

2005); Griffin v. United States, 330 F.3d 733, 739 (6th Cir.

2003); United States v. Day, 969 F.2d 39, 45–47 (3d Cir. 1992).

6

A fourth rested on the defendant’s “long history of entering into

plea agreements in prior cases.” Dodson v. Ballard, 800 F.

App’x 171, 180–81 (4th Cir. 2020). In a fifth, the defendant

“specifically asked” his counsel about pleading guilty, yet

counsel promised that going to trial would be a “home run.”

Byrd v. Skipper, 940 F.3d 248, 258–59 (6th Cir. 2019).

Nothing like that happened here.

My colleagues cite one consideration specific to the plea

offer in this case—that Thorpe wanted to accept it. Ante, at 11–

12. That does not count for much, as defendants often weigh

differently the respective risks of pleading and going to trial.

See Lee, 137 S. Ct. at 1968–69. Moreover, Thorpe had “a more

significant criminal history than Knight,” which substantially

increased his downside risk at trial. Knight, 824 F.3d at 1111.

Thorpe’s preferences thus do not shed much light on Knight’s.

Second, my colleagues conclude that Knight’s testimony

at the 2017 ineffective-assistance hearing qualifies as

contemporaneous evidence. Ante, at 12–13. It does not. At

that hearing, conducted years after Knight had been convicted

and sentenced, Knight testified about conversations with his

lawyer during the 2013 plea negotiations. This may be

evidence about events contemporaneous with the plea offer.

But it is not “contemporaneous evidence” as opposed to “post

hoc assertions from a defendant about how he would have

pleaded but for his attorney’s deficiencies.” Lee, 137 S. Ct. at

1967. “Contemporaneous evidence” would be something akin

to the statements made by Lee “at his plea colloquy,” which

sufficed to corroborate his later post-conviction testimony. See

id. at 1968. Here, Knight presented no evidence generated

contemporaneously with the plea negotiations—such as a

transcript, letter, or recording—to support his later contentions

about his preferences at the time. His 2017 testimony, about

the 2013 plea offer, was not “contemporaneous evidence.”

7

To downplay the need for contemporaneous evidence, my

colleagues invoke Aguiar. Ante, at 15–16. There, we held that

a defendant does not need contemporaneous evidence to secure

“an evidentiary hearing to prove his claim.” 894 F.3d at 361–

62. But we expressly declined to address how the defendant

could “satisf[y] his ultimate burden of proof.” Id. We also

observed that Lee does not require a defendant to “hypothesize

his counsel’s advice might be erroneous and state

contemporaneously that his plea decision would differ if that

were so.” Id. at 362. Perhaps not, but Lee does require the

defendant to build a prejudice case consisting of more than just

post-conviction testimony—given after the defendant has

taken his shot at acquittal—plus the near truism that plea deals

produce much lower sentences than do convictions after trial.

Because Knight presented no contemporaneous evidence

that he would have accepted the Superior Court plea offer but

for bad legal advice, we should reject his post hoc attempt to

undo his plea decision.1

1

My colleagues characterize this dissent as saying that courts

may not consider “the generosity of the plea deal” or “testimony

adduced at an evidentiary hearing” post-conviction. Ante, at 22–23.

To the contrary, I have simply explained that post-conviction

testimony is not contemporaneous evidence. And because it cannot

suffice to show prejudice under Lee, then neither can the formula

embraced by my colleagues: post-conviction testimony plus the

truism that the defendant would have received a much shorter

sentence had he accepted the plea offer.

8

B

Even overlooking the lack of contemporaneous evidence,

the district court permissibly concluded that Knight had failed

to show prejudice.

1

We review the ultimate question of prejudice de novo,

United States v. Abney, 812 F.3d 1079, 1086–87 (D.C. Cir.

2016), but “the district court’s factual findings made in the

course of judging an ineffective assistance of counsel claim

may be set aside only if clearly erroneous,” United States v.

Mathis, 503 F.3d 150, 151 (D.C. Cir. 2007). Strickland itself

makes clear that district-court “findings of fact made in the

course of deciding an ineffectiveness claim” are “subject to the

clearly erroneous standard” of review. 466 U.S. at 698.

According to the district court, Knight failed to show a

reasonable probability that he would have accepted the plea

offer had he received proper advice. 2019 WL 1117197, at

*10. This was a finding of fact, not a legal statement about

what constitutes Strickland prejudice. In United States v.

Thompson, 27 F.3d 671 (D.C. Cir. 1994), we held that a district

court’s determination “whether there was a ‘reasonable

probability’ that [the defendant], if properly advised, would

have pleaded guilty” in time to qualify for a sentencing

reduction was a “factual finding” to be reviewed for clear error.

Id. at 677 (quoting Strickland, 466 U.S. at 694). Likewise, we

have treated as factual, and subjected to clear-error review,

determinations whether the government would have offered a

better plea deal but for defense counsel’s deficient

performance, see Mathis, 503 F.3d at 152, and whether a

defendant accepting a plea deal would have been convicted had

he gone to trial, see United States v. Del Rosario, 902 F.2d 55,

9

58 (D.C. Cir. 1990), abrogated on other grounds by Padilla v.

Kentucky, 559 U.S. 356 (2010). Other circuits have held that

the question whether a defendant would have accepted a plea

offer if properly advised is a factual one. See, e.g., Johnson v.

Genovese, 924 F.3d 929, 938–39 (6th Cir. 2019); United States

v. Scribner, 832 F.3d 252, 258 & n.4 (5th Cir. 2016);

Merzbacher v. Shearin, 706 F.3d 356, 366–68 (4th Cir. 2013).

The latter cases arose on collateral review, but the distinction

between direct and collateral review has no bearing on whether

the question at issue is legal or factual.

Common sense reinforces this view. The question whether

Knight would have accepted the plea offer had he been

properly advised has no impact on other cases. It involves no

normative judgments. And it rests on “the credibility of

witnesses and therefore turns largely on an evaluation of

demeanor.” Miller v. Fenton, 474 U.S. 104, 114 (1985). The

only possible justification for reviewing this finding de novo is

that the finding effectively controls the question of Strickland

prejudice. But it is “well established” that “an issue does not

lose its factual character merely because its resolution is

dispositive of the ultimate constitutional question.” Id. at 113.

For these reasons, I would review the district court’s

determination only for clear error.

2

“A finding is ‘clearly erroneous’ when although there is

evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a

mistake has been committed.” United States v. U.S. Gypsum

Co., 333 U.S. 364, 395 (1948). We apply this deferential

standard because district courts are “best suited to developing

the facts” bearing on ineffective-assistance claims. Massaro v.

United States, 538 U.S. 500, 505 (2003). We owe even

10

“greater deference” when factual findings rest on credibility

determinations, “for only the trial judge can be aware of the

variations in demeanor and tone of voice that bear so heavily

on the listener’s understanding of and belief in what is said.”

Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).

The critical finding here—that Knight was unlikely to

accept the plea offer even if he had received adequate advice—

is not clearly erroneous.

First, at a June 4, 2013 status hearing in district court, the

prosecutor memorialized the defendants’ firm desire to go to

trial: “I have talked to defense counsel in this case. It appears

that the Defendants are not amenable to even discussing a non

trial disposition. I would like that to be reflected on the record

. . . because the Defendants have indicated they want to go to

trial.” J.A. 465 (emphasis added). Knight’s district-court

counsel—who is not alleged to have been ineffective—was

present at the hearing and made no objection to this

representation. The fact that Knight was “not amenable to even

discussing” a plea, even after having received effective

assistance of counsel and having been indicted for all of his

crimes, strongly suggests that he would not have accepted a

Superior Court plea deal had he then been advised that

significant further charges were possible.

My colleagues focus on a draft plea agreement apparently

offered by the government on June 6, 2013. Ante, at 16–17.

But the defendants’ rejection of that offer only tends to confirm

the prosecutor’s statement that they were “not amenable to

even discussing” a plea. And despite my colleagues’

suggestion to the contrary, that sweeping statement remains

significant even though the June plea offer was less favorable

to the defendants than the January one had been.

11

Second, Knight’s behavior in February 2013, while the

Superior Court plea offer was pending, tracks what the

prosecutor later said in June. The district court found that

Knight “did not want any additional time to consider or discuss

the plea [in Superior Court], but instead pushed [his attorney]

to ‘move forward.’” 2019 WL 1117197, at *10. To be sure,

Knight probably assumed that the offer on the table would

entail ten years in prison. But plea bargains involve a “give-

and-take negotiation.” Bordenkircher v. Hayes, 434 U.S. 357,

362 (1978) (quotation marks omitted). And if Knight had been

open to a plea deal along the lines of what the government had

actually proposed, with a recommended guideline sentence of

up to six years, one might have expected him at least to

consider the possibility of further negotiations—especially

given his experience with two prior guilty pleas. Instead,

Knight pressed his attorney to “move forward” as quickly as

possible, to take his chances at trial.

Third, Knight had a powerful incentive to avoid any

conviction. When he kidnapped Peters in 2013, Knight was

still serving a five-year term of supervised release following

his 2001 guilty plea and ten-year sentence for distributing more

than 50 grams of cocaine base. 2019 WL 1117197, at *4 n.5;

see United States v. Knight, No. 01-cr-00016 (D.D.C. Sept. 14,

2001). Knight admitted knowing that his supervised release

would be revoked if he were convicted. And his attorney

testified that Knight “was concerned about getting that

additional time if he took the plea.” J.A. 340. As it turns out,

Knight was sentenced to 21 months of imprisonment for

violating the terms of his supervised release, running

concurrently with the sentence imposed in this case, after the

judge in the drug case accepted Knight’s request for leniency

based on the length of the sentence imposed here. See United

States v. Knight, No. 01-cr-00016 (D.D.C. July 1, 2014).

12

Fourth, Knight hoped that Peters—a key prosecution

witness—would not testify against him. 2019 WL 1117197, at

*11. Knight had good reason to be hopeful, for his threats

already had induced Peters to lie to the police on the night of

the arrest. And Peters agreed to testify against Knight only in

exchange for his own favorable plea deal in a separate case—

which was reached long after Knight had declined his Superior

Court plea offer. In sum, Knight’s own threats against Peters

supported his hope that Peters would not testify against him.

Fifth, on May 15, 2013, Knight filed an ethics complaint

against his Superior Court counsel with the D.C. bar. By then,

Knight already had been indicted in federal court and appointed

new counsel, whom Knight does not contend was ineffective.

In the bar complaint, Knight raised a host of allegations against

his former counsel—most prominently that counsel, in

obtaining a three-week continuance for Knight to consider the

plea offer, did not push the case forward quickly enough.

Nowhere in that complaint did Knight raise the alternative,

contradictory allegation that his counsel should have spent

more time attempting to negotiate a better plea deal or advising

Knight of the risks of an expanded indictment.

My colleagues point to snippets of contrary evidence from

Knight’s testimony at the ineffective-assistance hearing. For

instance, Knight claims to have asked his attorney “how much

time do they want” for the plea, and to have responded “okay”

when his counsel asked to discuss the plea issue further. J.A.

61; see ante, at 12–13. But the district court had ample reasons

for taking Knight’s testimony “with a grain of salt.” 2019 WL

1117197, at *9. Among other things, Knight was a repeatedly

convicted felon, and his offenses in this case included a scheme

to escape responsibility by coercing the victims of his crimes

“to lie to the police afterwards.” Id. at *10 n.6. Moreover,

Knight and his former counsel gave conflicting testimony on

13

whether Knight hoped that Peters would not testify against him,

and the district court resolved that dispute by concluding that

Knight had testified untruthfully. See id.

Finally, I am skeptical of my colleagues’ view that the plea

offer here was unusually generous. In the abstract, there is little

surprise that the initial offer—made three days after the crimes,

before the government had conducted much of an

investigation, before the primary victim had agreed to testify,

and months before the trial—was substantially more favorable

than the sentences imposed after a full trial and guilty verdict.

As noted above, that is how pleas normally work. And this plea

offer may have fairly reflected evidentiary uncertainty and

Peters’s unwillingness to cooperate at the time, rather than an

act of gratuitous generosity. But in any event, Lafler asks only

whether the defendant would have accepted the plea offer, not

whether an objectively reasonable person would have done so.

See 566 U.S. at 164. Thus, our own assessment of the offer

must yield to Knight’s subjective reasons for rejecting it.2

2

If the plea offer were unusually generous, that would highlight

a further problem with my colleagues’ disposition of this appeal. To

show prejudice under Lafler, the defendant must establish a

reasonable probability that but for inadequate legal advice (1) the

defendant would have accepted the plea offer, (2) the government

would not have withdrawn it, (3) the court would have accepted the

plea, and (4) the sentence under the plea would have been less severe

than the sentence actually imposed. See 566 U.S. at 164. In this

case, the district court found that Knight had failed to prove the first

element of prejudice, so it did not address the others. An unusually

generous plea offer would simply highlight the need to determine

whether the Superior Court would have accepted it. On my

colleagues’ own reasoning, then, we should remand for the district

court to resolve that question.

14

The district court committed no clear error in finding that

Knight was unlikely to have accepted the plea offer had he

received adequate legal advice. Knight’s ineffective-assistance

claim thus fails for lack of any prejudice.

III

On the question of remedy, my colleagues order the

government to re-extend its original plea offer to Knight. They

acknowledge that the district court retains discretion to

consider whether to accept or reject this plea deal, while also

noting that the discretion has limits. Ante, at 19–20.

Lafler governs this remedial inquiry. The Supreme Court

noted that, if ineffective assistance causes the defendant to

reject a plea offer, “the proper exercise of discretion to remedy

the constitutional injury may be to require the prosecution to

reoffer the plea proposal.” 566 U.S. at 171. But “[o]nce this

has occurred, the [trial] judge can then exercise discretion in

deciding whether to vacate the conviction from trial and accept

the plea or leave the conviction undisturbed.” Id. (emphasis

added). The Court thus held that the “correct remedy” in Lafler

itself was simply “to order the State to reoffer the plea

agreement,” and it vacated a Sixth Circuit decision that had

further “ordered specific performance of the original plea

agreement.” Id. at 174. In so doing, the Supreme Court

explained that the trial court on remand could “exercise its

discretion in determining whether to vacate the convictions and

resentence [the defendant] pursuant to the plea agreement, to

vacate only some of the convictions and resentence [the

defendant] accordingly, or to leave the convictions and

sentence from trial undisturbed.” Id.

In this case, several considerations favor rejecting the

reoffered plea agreement. The original plea offer was made

15

only three days after Knight committed his crimes—before the

government spent years building a case against him,

prosecuting him, and defending against his appeal and post-

conviction claims. Seven years after-the-fact, the plea offer

would give Knight most of what the government originally

offered to him, in the form of substantially lower sentencing

exposure. But it would give the government none of what it

demanded in return—avoiding the cost of prosecuting this case

and the risk of an acquittal. Moreover, after Knight rejected

the plea offer, the government offered Peters a favorable plea

agreement to secure his testimony against Knight, thus

narrowing it options for seeking a lawful punishment of Peters.

And another court imposed a lenient sentence on Knight for his

supervised-release violations because of his conviction and

long sentence in this case. In short, intervening events have

made it impossible to restore the parties to the respective

positions that they would have held had Knight accepted the

plea offer in 2013. And enforcing the plea agreement now

would dramatically skew its benefits and burdens in favor of

Knight and against the government.

My colleagues fairly note the competing interest in

affording some remedy for ineffective assistance in this

context, and I have no quarrel with the proposition that this

interest must be “balanced against” the government interests

noted above. Ante, at 20. In my view, such balancing would

occur if the district court on remand were to reject the plea

agreement and then impose a sentence taking account of both

the ineffective assistance found by my colleagues and the

changed circumstances noted above. That approach would

recognize the impossibility of restoring the parties to the

“precise positions they occupied prior to the rejection of the

plea offer.” Lafler, 566 U.S. at 171–72. And it would rest not

on judicial disagreement with the government’s initial charging

decision, cf. United States v. Fokker Servs. B.V., 818 F.3d 733,

16

745 (D.C. Cir. 2016), but instead on a judgment that

intervening events have made it impossible, seven years later,

to give both parties the full benefit of their bargain.3

3

I agree with my colleagues that Thorpe received effective

assistance of counsel and is entitled to no remedy.