NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 18-3026 ____________
UNITED STATES OF AMERICA
v.
JAMES BERNARD ARMSTRONG, JR., Appellant
______________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1:11-cr-00089-001) District Judge: Honorable Lawrence F. Stengel ______________
Submitted Under Third Circuit L.A.R. 34.1(a) October 28, 2019
BEFORE: SMITH, Chief Judge, HARDIMAN, and PHIPPS, Circuit Judges
(Filed: January 17, 2020)
OPINION* ______________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.
James Bernard Armstrong, Jr. appeals an order of the District Court denying his
motion to vacate sentence under 28 U.S.C. § 2255. Armstrong was tried and convicted on
three federal drug and firearm counts. He claims his trial counsel was ineffective in
advising him to reject the Government’s plea offer. For the reasons that follow, we will
affirm.
I
In 2012, a jury convicted Armstrong of conspiring to distribute and possess with
the intent to distribute 1,000 kilograms and more of marijuana and 500 grams and more
of cocaine hydrochloride; distributing and possessing with the intent to distribute the
same; and possessing a firearm in furtherance of drug trafficking. The District Court
sentenced Armstrong to 180 months’ imprisonment, the statutory mandatory minimum.
Armstrong appealed and we affirmed. United States v. Armstrong, 591 F. App’x 169 (3d
Cir. 2015).
Armstrong filed a timely motion to vacate under 28 U.S.C. § 2255, alleging
ineffective assistance of counsel at the plea phase. The District Court denied Armstrong’s
motion without an evidentiary hearing and declined to issue a certificate of appealability.
We granted a certificate of appealability to consider whether the District Court erred
when it denied Armstrong’s motion without first conducting an evidentiary hearing.
2 II1
The issue here is whether the District Court erred in not holding an evidentiary
hearing on Armstrong’s ineffective assistance of counsel claim. By statute, the District
Court must hold a hearing “[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). We
have explained that text as requiring a hearing for unresolved facts: “where a petition
allege[s] any facts warranting relief under § 2255 that are not clearly resolved by the
record, the District Court [is] obligated to follow the statutory mandate to hold an
evidentiary hearing.” United States v. Tolliver, 800 F.3d 138, 141 (3d Cir. 2015)
(alterations in original) (emphasis added) (quotations marks omitted). We are not
persuaded that a hearing was warranted here. Even accepting his allegations as true, the
performance of Armstrong’s attorney was not deficient under Strickland v. Washington,
466 U.S. 668 (1984). See Duncan v. Morton, 256 F.3d 189, 200 (3d Cir. 2001) (citing
Strickland, 466 U.S. at 687) (applying “an objective standard of reasonableness, viewed
to the extent possible from the attorney’s perspective at the time”).
Armstrong argues that his counsel acted objectively unreasonably by
recommending against the plea because: he cooperated with law enforcement at the time
of his arrest; he consented to a search of his residence; he provided self-incriminating
statements; there were cooperating witnesses; and there was harmful evidence. This tells
1 We have jurisdiction to review the District Court’s order denying an evidentiary hearing under 28 U.S.C. §§ 1291 and 2253(a). We review for abuse of discretion. United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008) (citing United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005)).
3 only part of the story, however. Armstrong glosses over factors—especially on the 18
U.S.C. § 924(c) firearm charge—that either cut in his favor or could have cut either way.
For example, the gun was not found during the drug trafficking crimes, nor was there a
quantifiable amount of drugs in Armstrong’s residence where the gun was found.
Accordingly, Armstrong argued on direct appeal that there was insufficient evidence to
convict him on the § 924(c) count. Armstrong, 591 F. App’x at 170. Although his
conviction was affirmed, the fact that Armstrong’s appeal focused on insufficiency of the
evidence for the § 924(c) count supports the reasonableness of counsel’s recommendation
to proceed to trial. Because Armstrong’s conviction was not a foregone conclusion, we
agree with the District Court that the record conclusively shows that Armstrong’s counsel
did not render deficient performance by advising him to proceed to trial.
Nor can Armstrong establish prejudice on this first claim, which requires a
showing that there is a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” See Strickland, 466 U.S.
at 694. Had Armstrong accepted the guilty plea, his base offense level would have been
the same level that applied after trial (32). The prosecutor noted that if Armstrong
pleaded guilty, the “range would [have been] reduced by two levels for the acceptance of
responsibility,” taking it down to a range of 97 to 121 months. App. 8–9. But the
prosecutor also opined “[t]here are other enhancements that would possibly apply here.”
App. 8. And as the Government noted in its brief, Armstrong would have received a four-
level enhancement under § 3B1.1(a) for being an organizer or leader (which he also
received after trial) and a two-level enhancement under § 2D1.1(b)(1) for possessing a
4 dangerous weapon once the firearm charge was dropped. Together, these enhancements
would have returned Armstrong to an offense level of 36. The Guidelines range for that
offense level is 188–235 months—higher than the sentence of 180 months Armstrong
received. The record thus conclusively shows that Armstrong was not prejudiced by
proceeding to trial.
In response, Armstrong presses the possibility of a downward departure for
substantial assistance. Such a departure would have depended on Armstrong’s
cooperation with the Government following his guilty plea. Yet no evidence in the record
suggests Armstrong would have done so, much less that he would have done so to the
Government’s satisfaction, which renders the prospect of a downward departure
speculative at best.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 18-3026 ____________
UNITED STATES OF AMERICA
v.
JAMES BERNARD ARMSTRONG, JR., Appellant
______________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1:11-cr-00089-001) District Judge: Honorable Lawrence F. Stengel ______________
Submitted Under Third Circuit L.A.R. 34.1(a) October 28, 2019
BEFORE: SMITH, Chief Judge, HARDIMAN, and PHIPPS, Circuit Judges
(Filed: January 17, 2020)
OPINION* ______________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.
James Bernard Armstrong, Jr. appeals an order of the District Court denying his
motion to vacate sentence under 28 U.S.C. § 2255. Armstrong was tried and convicted on
three federal drug and firearm counts. He claims his trial counsel was ineffective in
advising him to reject the Government’s plea offer. For the reasons that follow, we will
affirm.
I
In 2012, a jury convicted Armstrong of conspiring to distribute and possess with
the intent to distribute 1,000 kilograms and more of marijuana and 500 grams and more
of cocaine hydrochloride; distributing and possessing with the intent to distribute the
same; and possessing a firearm in furtherance of drug trafficking. The District Court
sentenced Armstrong to 180 months’ imprisonment, the statutory mandatory minimum.
Armstrong appealed and we affirmed. United States v. Armstrong, 591 F. App’x 169 (3d
Cir. 2015).
Armstrong filed a timely motion to vacate under 28 U.S.C. § 2255, alleging
ineffective assistance of counsel at the plea phase. The District Court denied Armstrong’s
motion without an evidentiary hearing and declined to issue a certificate of appealability.
We granted a certificate of appealability to consider whether the District Court erred
when it denied Armstrong’s motion without first conducting an evidentiary hearing.
2 II1
The issue here is whether the District Court erred in not holding an evidentiary
hearing on Armstrong’s ineffective assistance of counsel claim. By statute, the District
Court must hold a hearing “[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). We
have explained that text as requiring a hearing for unresolved facts: “where a petition
allege[s] any facts warranting relief under § 2255 that are not clearly resolved by the
record, the District Court [is] obligated to follow the statutory mandate to hold an
evidentiary hearing.” United States v. Tolliver, 800 F.3d 138, 141 (3d Cir. 2015)
(alterations in original) (emphasis added) (quotations marks omitted). We are not
persuaded that a hearing was warranted here. Even accepting his allegations as true, the
performance of Armstrong’s attorney was not deficient under Strickland v. Washington,
466 U.S. 668 (1984). See Duncan v. Morton, 256 F.3d 189, 200 (3d Cir. 2001) (citing
Strickland, 466 U.S. at 687) (applying “an objective standard of reasonableness, viewed
to the extent possible from the attorney’s perspective at the time”).
Armstrong argues that his counsel acted objectively unreasonably by
recommending against the plea because: he cooperated with law enforcement at the time
of his arrest; he consented to a search of his residence; he provided self-incriminating
statements; there were cooperating witnesses; and there was harmful evidence. This tells
1 We have jurisdiction to review the District Court’s order denying an evidentiary hearing under 28 U.S.C. §§ 1291 and 2253(a). We review for abuse of discretion. United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008) (citing United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005)).
3 only part of the story, however. Armstrong glosses over factors—especially on the 18
U.S.C. § 924(c) firearm charge—that either cut in his favor or could have cut either way.
For example, the gun was not found during the drug trafficking crimes, nor was there a
quantifiable amount of drugs in Armstrong’s residence where the gun was found.
Accordingly, Armstrong argued on direct appeal that there was insufficient evidence to
convict him on the § 924(c) count. Armstrong, 591 F. App’x at 170. Although his
conviction was affirmed, the fact that Armstrong’s appeal focused on insufficiency of the
evidence for the § 924(c) count supports the reasonableness of counsel’s recommendation
to proceed to trial. Because Armstrong’s conviction was not a foregone conclusion, we
agree with the District Court that the record conclusively shows that Armstrong’s counsel
did not render deficient performance by advising him to proceed to trial.
Nor can Armstrong establish prejudice on this first claim, which requires a
showing that there is a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” See Strickland, 466 U.S.
at 694. Had Armstrong accepted the guilty plea, his base offense level would have been
the same level that applied after trial (32). The prosecutor noted that if Armstrong
pleaded guilty, the “range would [have been] reduced by two levels for the acceptance of
responsibility,” taking it down to a range of 97 to 121 months. App. 8–9. But the
prosecutor also opined “[t]here are other enhancements that would possibly apply here.”
App. 8. And as the Government noted in its brief, Armstrong would have received a four-
level enhancement under § 3B1.1(a) for being an organizer or leader (which he also
received after trial) and a two-level enhancement under § 2D1.1(b)(1) for possessing a
4 dangerous weapon once the firearm charge was dropped. Together, these enhancements
would have returned Armstrong to an offense level of 36. The Guidelines range for that
offense level is 188–235 months—higher than the sentence of 180 months Armstrong
received. The record thus conclusively shows that Armstrong was not prejudiced by
proceeding to trial.
In response, Armstrong presses the possibility of a downward departure for
substantial assistance. Such a departure would have depended on Armstrong’s
cooperation with the Government following his guilty plea. Yet no evidence in the record
suggests Armstrong would have done so, much less that he would have done so to the
Government’s satisfaction, which renders the prospect of a downward departure
speculative at best.
Armstrong next claims counsel misstated his sentencing exposure if he went to
trial. Even assuming, arguendo, that counsel was deficient in this regard, the record
shows Armstrong was not prejudiced. The possible sentencing outcomes were clearly
reviewed with Armstrong on the record before trial. Both the prosecutor and the Court
discussed the possible reductions for acceptance of responsibility and substantial
assistance, as well as the mandatory minimum that would apply after trial. After
Armstrong expressed confusion over the plea offer’s terms, the District Court took a
twenty-five minute recess. During that time, Armstrong discussed the proposed plea
agreement with both his attorney and the prosecutor. Following the recess, Armstrong
confirmed that he had enough time to discuss the offer with his attorney, that he
understood the offer, that he did not require more time, and that it was his decision not to
5 plead guilty. The record conclusively shows that Armstrong was fully informed of the
sentencing ramifications of his decision before electing to proceed to trial. Any failure by
his attorney in this regard would have been immaterial, so he cannot establish prejudice
under Strickland. The District Court therefore did not err in denying Armstrong an
evidentiary hearing.
III
We will affirm the District Court’s order denying Armstrong’s motion to vacate
sentence.