Gordon v. United States

496 F.3d 1270, 2007 U.S. App. LEXIS 20053, 2007 WL 2385078
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 23, 2007
Docket05-16703
StatusPublished
Cited by7 cases

This text of 496 F.3d 1270 (Gordon v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gordon v. United States, 496 F.3d 1270, 2007 U.S. App. LEXIS 20053, 2007 WL 2385078 (11th Cir. 2007).

Opinion

PRYOR, Circuit Judge:

This appeal requires us to decide two issues about the relation between the standard that governs plain error review on direct appeal and the standard that governs collateral review of ineffective assistance of counsel. The issues are whether counsel for Kirlew Gordon rendered ineffective assistance by neglecting to object to two alleged errors of the district court: (1) a failure to inform Gordon of the nature of the charges to which he was pleading, and (2) a failure to address Gordon personally concerning his right to alloeute. Gordon pleaded guilty to one count of engaging in a continuing criminal enterprise, 21 U.S.C. § 848, and one count of conspiracy to import cocaine, 18 U.S.C. § 371. At Gordon’s plea colloquy, the district court did not explain the nature of these charges to Gordon. The court asked Gordon whether his counsel had explained to him the nature of the charges and allowed the prosecutor to recite at length an earlier discussion in which the prosecutor clarified *1274 for Gordon, in the presence of Gordon’s counsel, the nature of the charges. Gordon stated that his attorney had explained the charges to him, he understood them, and the prosecutor’s description of their earlier conversation was accurate. Before it sentenced Gordon, the district court asked counsel for both parties whether they had anything further to say, but the court did not address Gordon personally to determine whether he wanted to speak. As to both matters, we conclude that counsel for Gordon did not render ineffective assistance and deny Gordon’s petition.

I. BACKGROUND

In November 1999, Gordon agreed to plead guilty to engaging in a continuing criminal enterprise and conspiring to import cocaine, which were two counts of a four-count indictment, and Gordon waived his right to “appeal from any sentence, so long as it is within the guideline range.” In exchange, the government agreed to recommend that Gordon be sentenced at the low end of the Guidelines range and receive a three-level reduction for acceptance of responsibility, and the government agreed to file a motion for downward departure for providing substantial assistance. At his plea hearing, Gordon testified that he read and understood English. He said his attorney had explained to him the elements of the offenses and the potential penalties.

The prosecutor then stated to the court that, earlier that morning, Gordon had expressed concern that he seemed to be pleading guilty to causing the death of Michelle Goodwin, a drug courier who died after cocaine packages she was carrying in her body burst and the cocaine found its way into her bloodstream. The prosecutor stated that he explained to Gordon, in the presence of Gordon’s attorney and a United States Marshal, that Gordon was not being charged with causing Goodwin’s death, but that the continuing criminal enterprise count to which Gordon was pleading guilty incorporated by reference the provisions and punishments for another offense. See 21 U.S.C. § 846. A defendant who is found guilty of conspiring to import drugs under section 846 is subject to a 20-year mandatory minimum sentence if a person is seriously injured or dies as a result of the “use” of the drugs.

The prosecutor stated that Gordon also expressed concern that the government stated that the profits obtained from the drug activity totaled over $1 million. The prosecutor explained to Gordon that there was no documentary evidence that Gordon received $1 million in profits, but that there were Western Union receipts evidencing that over $1 million had been wired to his wife, Ann Marie Gordon, and several aliases used by her.

The prosecutor stated that, after these matters had been explained to Gordon, Gordon consulted with his attorney for a few minutes and then stated he was satisfied with these answers. The district court then asked Gordon whether the conference described by the prosecutor took place and whether the prosecutor’s summary was an approximate description of what the prosecutor had said. Gordon replied in the affirmative. The prosecutor then recited the facts that the government was prepared to prove at trial.

The prosecutor stated that, in July 1993, Michelle Goodwin, the wife of a U.S. Army sergeant, collapsed at Fort McClellan and soon afterward died in a hospital. An autopsy revealed over 30 bundles of cocaine in her stomach and colon, at least two of which had leaked cocaine into her bloodstream and caused her death. Her death prompted an investigation by the U.S. Army, the Drug Enforcement Administration, the U.S. Customs Service, the Federal Bureau of Investigation, and a local drug task force into the source of *1275 the drugs. These agencies investigated rumors that people with Jamaican connections were smuggling drugs into the Anni-ston, Alabama, area, and their investigation ultimately led them to Kirlew Gordon and his wife, Aum Marie.

The sworn statements of numerous cooperating individuals and substantial documentary evidence — phone records, Western Union receipts, and Western Union computer records evidencing over $1 million in profits sent to Ann Marie or one of her known aliases — would establish that the Gordons had been running a drug smuggling and distribution operation since 1993. Kirlew controlled the operation from Anniston and Ann Marie assisted him in Jamaica and Palm Beach, Florida. The Gordons recruited people to travel from Atlanta or Palm Beach to Kingston, Jamaica, where they would secrete cocaine on or in their bodies at a house identified and photographed by government agents. The recruits would then travel to Atlanta where they either boarded a bus to Anni-ston or were met by Kirlew and transported to Anniston. Several cooperating witnesses, including some of Gordon’s distributors and other drug couriers, would testify consistently with these details and would state that Kirlew and Ann Marie ran the organization.

The last known overt act of the conspiracy occurred on September 3, 1997, when Kirlew and his sister, Leonie Grant, were arrested traveling west on Interstate 20 shortly after crossing into Alabama. An anonymous caller, suspected of being Ann Marie, provided specific information about the individuals in the car, including their names, the type of luggage they would be carrying, the airline they would be flying from Palm Beach to Atlanta, and that Grant would be the one transporting the cocaine. After being questioned by officers, Grant removed a package of crack cocaine from her underwear and ultimately removed a second one from her vagina. The net weight of cocaine base was almost half a kilogram. Grant would testify that she brought cocaine to Anniston for the Gordons on several earlier occasions. A DEA agent who had reviewed all of the witness statements and documentary evidence would testify that the Gordons’ organization had distributed between 10 and 24 kilograms of cocaine base.

After the factual basis of the plea agreement had been described, Gordon pleaded guilty as follows:

COURT: Mr. Gordon, you heard what the government expects to prove ... and you heard what Mr.

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Bluebook (online)
496 F.3d 1270, 2007 U.S. App. LEXIS 20053, 2007 WL 2385078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-v-united-states-ca11-2007.