United States v. Jessie Acosta

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 18, 2019
• Docket: 18-14581
• Status: Unpublished

Opinion

Case: 18-14581 Date Filed: 11/18/2019 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14581 Non-Argument Calendar ________________________

D.C. Docket No. 3:16-cr-00348-WKW-WC-13

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JESSIE ACOSTA,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Middle District of Alabama ________________________

(November 18, 2019)

Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM: Case: 18-14581 Date Filed: 11/18/2019 Page: 2 of 6

Jessie Acosta appeals his conviction after pleading guilty to conspiracy to

distribute and possess with intent to distribute methamphetamine and cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), 846. For the first time on appeal, Acosta argues

that his decision to plead guilty was tainted by his counsel’s ineffective assistance

and that, as a result, his conviction and sentence should be reserved. However, the

record is not sufficiently developed in this direct appeal to resolve this ineffective-

assistance claim, so we affirm Acosta’s conviction and sentence.

I.

A federal grand jury returned a two-count superseding indictment charging

Acosta and fourteen others with conspiring to distribute and possess with intent to

distribute methamphetamine and cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and

846, and Acosta and two others with conspiring to launder money, in violation of 18

U.S.C. § 1956(a)(1)(B), (h). After his arrest, Acosta was released on bond.

In April 2018, Acosta, represented by appointed counsel, pled guilty to the

drug-conspiracy count under a written plea agreement with the government. In

exchange for Acosta’s guilty plea, the government agreed to recommend a guideline

reduction for acceptance of responsibility, to not bring additional charges arising out

of the criminal activity, to dismiss the money-laundering count after sentencing, and

to recommend a sentence at the bottom of the guideline range. The parties also

agreed that Acosta was accountable for 18.18 kilograms of cocaine, 84.9 kilograms

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of methamphetamine, and 41.13 kilograms of marijuana, which resulted in a base

offense level of 38 under the sentencing guidelines.

After Acosta pled guilty, a magistrate judge conducted a bond hearing under

seal. During the hearing, the magistrate judge chastised Acosta’s counsel for his

conduct in relation to ensuring that Acosta complied with his bond conditions.

Before sentencing, the probation office prepared Acosta’s presentence

investigation report (“PSR”). The PSR recommended a base offense level of 38,

U.S.S.C. § 2D1.1, a four-level increase for Acosta’s role as an organizer or leader in

the criminal activity, id. § 3B1.1(a), and a three-level reduction for acceptance of

responsibility, id. § 3E1.1, for a total offense level of 39. Along with a criminal

history category of II, this established a recommended guideline imprisonment range

of 292 to 365 months. Acosta’s counsel filed objections to the PSR challenging the

organizer or leader enhancement, arguing that Acosta was not a leader in the drug

organization and did not exercise any decision-making authority.

In mid-July 2018, the district court issued orders continuing the sentencing

hearing and, on its own motion and without explanation, discharging Acosta’s

counsel. The court directed the Federal Defender’s Office to secure new counsel.

Represented by new counsel, Acosta went forward with sentencing in October

2018. The district court overruled Acosta’s objection to the four-level leadership

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enhancement and then sentenced him to 150 months of imprisonment. Acosta now

appeals.

On appeal, Acosta raises the sole issue of whether his appointed counsel, prior

to being discharged by the district court, rendered ineffective assistance in

connection with Acosta’s decision to plead guilty.

II.

Ordinarily, we review an ineffective-assistance-of-counsel claim de novo as a

mixed question of law and fact. United States v. Bender, 290 F.3d 1279, 1284 (11th

Cir. 2002). But we generally do not consider ineffective-assistance claims on direct

appeal. Id. In most direct appeals, the record will be “incomplete or inadequate”

for litigating a claim of ineffective assistance. Massaro v. United States, 538 U.S.

500, 504–05 (2003). For that reason, ineffective-assistance claims are better handled

in the context of a collateral attack on the conviction under 28 U.S.C. § 2255, where

the district court can develop the facts necessary to evaluate the claim. United States

v. Merrill, 513 F.3d 1293, 1308 (11th Cir. 2008). Yet there will be “rare” cases

where the record is developed enough to consider such a claim on direct appeal. Id.

Acosta maintains that this is “the rare case where the ineffective assistance of

counsel is clearly evident from the record on direct appeal.” He points out that

counsel was discharged by the district court on its own motion and argues that the

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transcripts of the bond and sentencing hearings demonstrate that counsel did not

provide competent representation.

To establish ineffective assistance of counsel, a defendant must show both

that (1) his counsel’s performance was deficient and (2) the deficient performance

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Where

the defendant challenges a guilty plea based on ineffective assistance, “the defendant

must show that there is a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial.” Hill v.

Lockhart, 472 U.S. 52, 59 (1985).

Here, we conclude that the record below is not sufficiently developed to

evaluate Acosta’s claim of ineffective assistance at this time. To be sure, the record

indicates that counsel was discharged by the district court due to concerns about his

representation of Acosta, specifically with regard to Acosta’s bond conditions. But

the record contains little to no information about the factual background concerning

Acosta’s decision to plead guilty. Specifically, we lack any information about the

conversations Acosta had with counsel during the plea negotiation process, or about

counsel’s communication with prosecutors regarding the plea agreement. Without

additional factual development, we cannot tell whether Acosta was prejudiced by

counsel’s ineffectiveness, if any, during the plea-bargaining process.

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As a result, we think that Acosta’s claim of ineffective assistance, like most

claims of ineffective assistance, is better handled in the context of a § 2255

proceeding. See Massaro, 538 U.S. at 504 (“[I]n most cases a motion brought under

§ 2255 is preferable to direct appeal for deciding claims of ineffective assistance.”).

We therefore affirm Acosta’s conviction and sentence without prejudice to Acosta

raising this claim in a collateral attack on his conviction under § 2255.

AFFIRMED.